Petitioners Brief — Malley v. Briggs

{ ovice Supreme Court, US.

' TED

' «JUL 26 1985

No. 84-1586 |

ALEXANDER L. STEVAS,

CLERK

In The

Supreme Court of the United States

October Term, 1984

O--——

EDWARD MALLEY AND

THE STATE OF RHODE ISLAND,

Petitioners,

VS.

JAMES R. BRIGGS AND

LOUISA BRIGGS,

Responde nis.

0

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ty)

Vv

BRIEF FOR PETITIONERS

sy

Vv

ARLENE VIOLET

Attorney General of the

State of Rhode Island

*Ann M. SHEADEL

Assistant Attorney General

72 Pine Street

Providence, RI 02903

(401) 274-4400

Counsel for Petitioners

*Counsel of Record

PETITION FOR CERTIORARI FILED APRIL 5, 1985

CERTIORARI GRANTED MAY 28, 1985

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY

QUESTION PRESENTED FOR REVIEW

Whether a police officer can be held liable under 42

U.S.C. § 1983 for damages resulting from an arrest, when

the only allegation made against the police officer is

that he knew or should have known that the affidavit that

he submitted to a neutral and detached magistrate in an

application for an arrest warrant lacked sufficient facts

to establish probable cause for the arrest, even though

the neutral and detached magistrate issued the arrest

warrant based upon his finding that probable cause for

arrest existed.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW WW. i

TABLE OF AUTHORITIES ...... on Se iv

OPINIONS AND JUDGMENTS BELOW 1

JURISDICTIONAL GROUNDS ee

CONSTITUTIONAL AND STATUTORY PROVI-

RY I a icchatieciannsiisssiiinhdeaheisculicnn

STATEMENT OF THE CASE —_ £££_$_

SUMMARY OF ARGUMENT

IIIT sscetitcshleabisAcsestabiiaiaisisinan sishasielibaat ”

I. A POLICE OFFICER SHOULD HAVE ABSO-

LUTE IMMUNITY FROM LIABILITY UN-

DER 42 U.S.C. § 1983 WHEN HIS ONLY AL-

LEGED MISCONDUCT IS THAT HE SUB-

MITTED AN ALLEGEDLY INSUFFICIENT

AFFIDAVIT TO A MAGISTRATE IN AN AP-

PLICATION FOR AN ARREST WARRANT.

A. THE FUNCTION PERFORMED BY THE

POLICE OFFICER IN SUBMITTING AN

ALLEGEDLY INSUFFICIENT AFFIDA-

VIT TO A MAGISTRATE IN AN APPLI-

CATION FOR AN ARREST WARRANT

HISTORICALLY HAS BEEN ACCORDED

AEUSUGATE ES ERERRUIES Be

B. IMPORTANT POLICIES AND INTER-

ESTS SUPPORT PROVIDING ABSOLUTE

IMMUNITY TO A POLICE OFFICER

WHO APPLIES TO A MAGISTRATE FOR

AN ARREST WARRANT. .. |

10

14

17

22

iil

TABLE OF CONTENTS—Continued

Page

1. TRADITIONAL POLICY REASONS

SUPPORTING ABSOLUTE IMMUN-

ITY APPLY TO A POLICE OFFICER

PERFORMING THIS FUNCTION. ......... 23

2. APPLYING ABSOLUTE IMMUNITY

TO A POLICE OFFICER IN THIS

SITUATION WILL SERVE THE POL-

ICY REASONS INHERENT IN THIS

COURT’S PREFERENCE FOR THE

USE OF ARREST WARRANTS AND

THE ESTABLISHED DIVISION OF

FUNCTIONS BETWEEN MAGIS-

TRATES AND POLICE OFFICERS... 28

Il. A POLICE OFFICER WHO IN GOOD FAITH

APPLIES TO A MAGISTRATE FOR AN AR-

REST WARRANT ACTS IN AN OBJECTIVE-

LY REASONABLE MANNER AND IS ENTI-

TLED TO QUALIFIED IMMUNITY. 0. ar)

GLI 38

iv

TABLE OF AUTHORITIES

Pages

CaSEs :

Baker v. McCollan, 443 U.S. 137 (1979) occ econ 29

Beck v. Ohio, 379 US. 8 (1964) — 28

Bwens v. Six Unknown Federal Narcotics Agents,

Bg __,._, RNS man NED OO OO 16

Briggs v. Malley, 748 F.2d 715 (1st Cir. 1984)..10, 27, 36

Briscoe v. LaHue, 460 U.S. 325 (1983) 00... 17, 18, 21

Brueckner v. Frederick, 109 Mo. App. 614, 83 S.W.

SE Seemann vee astereneeer: Foe Nt Pen ear a teresa mo 19

Burnett v. Grattan, — U.S. —, 104 S.Ct. 2924 (1984)... 15

Butz v. Economou, 438 U.S. 478 (1978)........... 15, 16, 17, 18, 22,

23, 24, 26, 34

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) 15, 18

Ferri v. Ackerman, 444 U.S. 193 (1979) .nccccccccncccecseeeeee 24

Gerstewm v. Pugh, 420 U.S. 103 (1975) 0. 29, 30, 31

Gogue v. MacDonald, 35 Cal. 2d 482, 218 P.2d 542

(1950) 20

Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983), cert.

denied, — U.S. —, 104 S.Ct. 1593 (1984)... 16, 26

Gregoire v. Biddle, 177 F.2d 579 (2nd Cir. sbi

cert. denied, 339 U. I 23

Harlow v. Fitzgerald, 457 U.S. 800 (1982)....15, 16, 17, 35, 36

Illinois v. Gates, — U.S. —, 103 S.Ct. 2317 (1983)......34, 36

Imbler v. Pachtman, 424 U.S. 409 (1976).....15, 16, 18, 21, 22,

23, 24, 25, 26

Johnson v. United States, 333 U.S. 10 (1948). 29, 31

Madison v. Manter, 441 F.2d 537 (1st Cir. 1971)....19, 20, 32

Vv

TABLE OF AUTHORITIES—Continued

Pages

Massachusetts v. Sheppard, — U.S. —, 104 S.Ct. 3424

(1984) 20, 37

Nixon v. Fitzgerald, 457 U.S. 731 (1982) ........... 18, 22, 24, 25,

26, 27

Parratt v. Taylor, 451 U.S. 527 (1981) 25

Pierson v. Ray, 386 U.S. 547 (1967) 0. 17, 24, 26, 34

Procunier v. Navarette, 434 U.S. 555 (1978) 0000... 15

Robertson v. Wegmann, 436 U.S. 584 (1978) 0... 15

Shadwick v. City of Tampa, 407 U.S. 345 (1972).....29, 30, 31

Stump v. Sparkman, 435 U.S. 349 (1978) 17

Tenney v. Brandhove, 341 U.S. 367 (1951) 17

United States v. Barker, 547 F.2d 940 (D.C. Cir. 1976) 34

United States v. Lefkowitz, 285 U.S. 452 (1932) .... . Bl

United States v. Leon, — U.S. —, 104 S.Ct. 3405

(1984) . A 14, 28, 29, 30, 36

United States v. United States District Court, 407

US. 27 (1972) —........ 30

Walden v. Wishengrad, 745 F.2d 149 (2nd Cir. 1984). 18

STATUTES AND CONSTITUTIONAL PROVISIONS:

U.S. Constr. AMenp. IV . cae 3, 8

42 U.S.C. § 1983 passim

‘TREATISES ;

21 A.L.R. 2d 689 ........ wisielshineneecleliesilaaaiueiay . 20

21 A.L.R. 2d 643 aadleinan . 1

vi

TABLE OF AUTHORITIES (Continued)

Pages

M. Bicetow, E.ements Or Tae Law Or Torts (1878) 20

M. BiceLow, Leapine Cases On THE Law Or Torts

(1875) 20

J. Bishop, ComMEntTARIES On THe Non-Contract

Law (1889)

No. 84-1586

——

Vv

In The

Supreme Court of the United States

October Term, 1984

fy

Vv

EDWARD MALLEY AND

THE STATE OF RHODE ISLAND,

Petitioners,

VS.

JAMES R. BRIGGS AND

LOUISA BRIGGS,

Respondents.

fy.

Vv

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ra

Vv

BRIEF FOR PETITIONERS

—

Vw

OPINIONS *ND JUDGMENTS BELOW

The opinion of the United States Court of Appeals

for the First Circuit, reported at 748 F.2d 715, is repro-

duced in Appendix A, pp. App. 1- App. 18, in the Peti-

tion for Writ of Certiorari. The Judgment of the United

States Court of Appeals for the First Cireuit is repro-

2

duced in Appendix D, p. App. 29, in the Petition for Writ

of Certiorari.

The unpublished Order of the United States District

Court for the District of Rhode Island granting petitioner

Malley’s Motion for Directed Verdict is reproduced in

Appendix B, pp. App. 19- App. 23, in the Petition for

Writ of Certiorari. The Judgment of the United States

District Court for the District of Rhode Island is repro-

duced at page 68 of the Joint Appendix.

The unpublished Opinion and Order of the United

States District Court for the District of Rhode Island deny-

ing respondents’ Motion for a New Trial or, in the Alter-

native, for Relief from Judgment is reproduced in Appen-

dix C, pp. App. 24-App. 28, in the Petition for Writ of Cer-

tiorari.

°

I

JURISDICTIONAL GROUNDS

The Judgment of the United States Court of Appeals

for the First Circuit was entered on November 19, 1984.

The Petition for Writ of Certiorari was filed on April 5,

1985, and was granted on May 28, 1985. Jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1254(1).

?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment IV:

The right of the people toe be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warranis shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

United States Code, Title 42:

§ 1983. Civil Action for Deprivation of Righ‘s.

Every person who, uader color, of any statute, or-

dinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress. For the pur-

poses of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be con-

sidered to be a statute of the District of Columbia.

ry

Vv

STATEMENT OF THE CASE

In December of 1980, the Rhode Island State Police

were conducting a court-authorized wiretap on the tele-

phone of Paul Driscoll in connection with a narcotics in-

vestigation. (J.A. 44.) At that time Paul Driscoll was

living with Jaime DeJoira, the daughter of respondents

James and Louisa Briggs (J.A. 41.) Mr. and Mrs. Briggs

4

met Paul in November of 1980 (J.A. 41), and after that

time he frequently came to their home fer dinner, for

visits, and to attend parties. (.J.A. 42.)

On the evening of December 19, 1980, Mr. and Mrs.

Briggs attended a party at a friend’s house. (J.A. 24.)

When they returned home at approximately midnight or

12:30 a.m. (J.A. 24, 28), there were four couples in their

living room sitting by the fire in the fireplace (J.A. 28,

39): Jaime DeJoira and Paul. Driscoll; Sandy, another

of the Briggs’ daughters, and her fiance, Scott Paul; Caro-

lyn Coleman, the Briggs’ niece, and her husband, David;

and another unidentified couple. (J.A. 28, 39.) Mr. Briggs

believes that he communicated with these couples for ‘‘five

minutes or so,’’ that he ‘‘probably fell asleep’’ in his

chair, that he was ‘‘there maybe an hour or so,’’ and that

his wife stayed and talked with the couples ‘‘[m]aybe

five minutes longer’’ than he did. (J.A. 29.) Mrs. Briggs

believes that she stayed with the couples ‘‘maybe a total

of fifteen minutes.’’ (J.A. 40.)

On December 20, 1980, during the regular monitering

by the State Police of the calls on Paul Driscoll’s tele-

phone, Officer Miranda noted on the call log sheet that a

call was received by Paul at 5:30 p.m. (J.A. 53-55, 78.)

Officer Miranda wrote on the call log sheet that ‘‘male

party calls Paul states this is Dr. Shogun—General con-

versation re. a party they went to last night—spot moni-

tored—caller says I can’t believe I was token [sic] in

front of Jimmy Briggs—caller states he passed it to

Louisa—caller and Paul talk about another party going

down tonight—Paul says Nancy was sitting in his lap roll-

ing her thing—conversation is general—caller says he will

pick up Paul at 6:30 tonight to go to the other party.”’

(J.A. 54-55, 78.) At 5:56 p.m. Officer Lynch noted on

the call log sheet that ‘‘Scott calls Paul... P going to

party at Jaimes parents house. Went to one there last

night also. Everything u can imagine was going on. Cole-

man trying to make Louisa (bungershort) Dave & Carolyn.

Going to party. Lot of relatives... .” (J.A. 78.) |

Pursuant to Rhode Island procedure,' petitioner Ed-

ward Malley reviewed the logged information regarding

these telephone calls to determine if the calls should be

considered incriminating calls. (J.A. 58.) At the time of

this review, petitioner Malley held the rauk of Trooper

with the Rhode Island State Police, was assigned to nar-

cotics duty in the Detective Division, and was supervising

the wiretap investigation of Paul Driscoll. (J.A. 44-45.)

After reviewing the logged information regarding these

calls with his partner, Trooper Malley concluded that an

incriminating call had been made regarding Mr. and Mrs.

Briggs because of the drug terminology used in the first

call: ‘‘token’’ indicates smoking marijuana and ‘‘rolling

'When the Superior Court of Rhode Isiand authorizes a

particular wiretap on a telephone, the procedure is as follows:

[C]alls on, to or from that phone are then monitored and

logged by the State Police. Calls which are considered to

be incriminating by the State Police are reported to the

superiors at the State Police. The officer at the State Po-

lice in charge of the investigation reviews the calls con-

sidered to be incriminating and decides which calls he

believes provide the basis for preparing and submitting an

affidavit and arrest warrant and District Court Complaint.

The officer then prepares the affidavit and the arrest war-

rant and the District Court complaint. These are submitted

to the Judge of the District Court, who reviews both of

them and, either signs or refuses to sign both of them.

(J.A. 51-52.)

6

her thing”’’ indicates rolling a marijuana cigarette. (J.A.

57-58. )

Accordingly, Trooper Malley prepared an Affidavit

and Arrest Warrant and a District Court Felony Com-

plaint for both James R. Briggs and Luisa [sic] B. Briggs

which he presented to Judge John J. Cappelli of the Rhode

Island District Court for the Judge’s review and either

approval or disapproval. (J.A. 45-49, 52, 72-74, 75-77.)

In his Complaints, Trooper Malley alleged that Mr. and

Mrs. Briggs “did unlawfully conspire” with Paul Dris-

eoll ‘‘to violate the uniform controlled substance act of

the State of Rhode Island’’ by having marijuana in their

possession. (J.A. 74, 77.) In his affidavits, Trooper Mal-

ley set forth the information in his possession regarding

the telephone calls concerning Mr. and Mrs. Briggs and

his interpretation of the drug terminology in the first call.’

Trooper Malley’s Affidavit regarding James R. Briggs states:

Your affiant upon oath states that he has reason to believe

and does believe that grounds for issuance of an arrest

warrant exists [sic] and states the following facts on which

such belief is founded:

Persuant [sic] to court ordered wire intercept... .

On December 20, 1980, at 5:30 p.m. an incoming call was

received to Paul Driscoll recorded on Reel 7, Side 1, Foot-

age 30-48. This unidentified male calls Paul Driscoll and

states, “This is Doctor Shotgun” [sic]. General conversa-

tion reference to a party they went to last night. Caller

states, “I can’t believe | was token in front of Jimmy

Briggs.” Caller states that he passed it to Luisa {sic}.

Caller and Paul talk about another party going on tonight.

Paul says that Nancy was sitting in his lap rolling her thing.

On the same date at 5:56 p.m., Reel 7, Footage 48-59.

Male subject Scott calls Paul Driscoll. General conversa-

tion about a party at Jaime’s parents’ home. Also, that

they went there last night. They are referring to Jaime’s

(Continued on following page)

~)

On lebruary 25, 1985, Judge Cappelli signed the Dis-

trict Court Felony Complaints and the Affidavits and

Arrest Warrants for Mr. and Mrs. Briggs, indicating on

each Arrest Warrant:

TO ANY AUTHORIZED OFFICER:

Affidavit (and complaint) having been made to me

under oath, and as I am satisfied that there is prob-

able cause for the belief therein set forth that grounds

for issuing an arrest warrant exists [sic], you are

hereby commanded to arrest the defendant forthwith

and to bring him before a judge of this court without

unnecessary delay.

(.J.A. 46, 47, 72, 75.)

(Continued from previous page)

parents’ home, that is James and Luisa [sic] Briggs. Fur-

ther, in regard to the conversation at 5:30 p.m. this uniden-

tified male who called himself Doctor Shotgun [sic] stated

that he was token in front of Jimmy Briggs. In your affiant’s

experience, he was smoking a marijuana cigarette in front

of James Briggs. He then states that he passed it to Luisa

[sic]. Luisa [sic] would be Luisa [sic] Briggs. He passed

her a marijuana cigarette. Where Paul states that Nancy

was sitting on his lap rolling her thing, she was rolling a

marijuana cigarette.

Therefore, your affiant requests that an arrest warrant be

issued for James R. Briggs, alias John Doe, DOB: [| blank}

(J.A. 72-73.)

Trooper Malley’s Affidavit regarding Luisa [sic] B. Briggs

is the same as the Affidavit regarding James R. Briggs, except

a the last sentence of the Affidavit regarding Mrs. Briggs

reads:

Therefore, your affiant requests that an arrest warrant be

rome - Luisa [sic] B. Briggs, alias Jane Doe, DOB:

(J.A. 75-76.)

8

Pursuant to these Arrest Warrants, on March 19,

1981, at approximately 5:45 a.m., Mr. and Mrs. Briggs

were arrested and taken to the Wickford State Police bar-

racks (J.A. 14-17) where they remained until approx-

imately 2:00 or 2:30 p.m. (J.A. 19.) During their stay

at the barracks, they were taken into a large room in

which other people who also had been arrested were being

held (.J.A. 18, 26, 34), including Jaime DeJoira, Paul Dris-

eoll, and David Coleman. (J.A. 26-27, 41.)

At approximately 2:00 or 2:30 p.m., Mr. and Mrs.

Briggs travelled by bus with the other arrestees to the

West Kingstown Courthouse (J.A. 19, 21), where Mr.

Briggs met with his attorney, who had been waiting for

him at the Courthouse for a scheduled land transaction.

(J.A. 21, 22.) Mr. and Mrs. Briggs were brought into

the courtroom for their arraignments and individually

came before the Judge and pleaded not guilty. (J.A. 22-

23, 38.) After Mr. and Mrs. Briggs signed for their bonds

(J.A. 23, 38), they were driven home by Jaime DeJoira’s

ex-husband. (J.A. 42.) The charges against Mr. and Mrs.

Briggs were later dropped, because the grand jury to

which the charges were presented returned no true bill

against Mr. and Mrs. Briggs. (J.A. 4.)

On December 18, 1981, James and Louisa Briggs filed

a complaint, under 42 U.S.C. § 1983, against Edward Mal-

ley and the State of Rhode Island in the United States

District Court for the District of Rhode Island, alleging

that their rights under the Fourth and Fourteenth Amend-

ments had been violated (J.A. 2-8.) Specifically, Mr.

3Mr. and Mrs. Briggs also alleged pendent state claims of

malicious prosecution, defamation, and false imprisonment.

(J.A. 5-8.)

and Mrs. Briggs alleged that they were unlawfully ar-

rested and imprisoned because the arrest warrants under

which they were arrested were constitutionally deficient

in that the affidavits submitted in support of the war-

rant applications did not set forth sufficient facts to

establish probable cause to believe that Mr. and Mrs.

Briggs had committed the offense alleged. (J.A. 3-4.) Mr.

and Mrs. Briggs alleged that they are entitled to $1,000,000

in compensatory damages and $1,000,000 in punitive dam-

ages from Trooper Malley because of this alleged viola-

tion of their constitutional rights. (J.A. 4.)

In his answer to this complaint, Trooper Malley as-

serted: (1) that he has absolute immunity and/or the

qualified immunity of good faith from this action; and

(2) that the complaint fails to state a claim upon which

relief may be granted, in that the facts alleged do not

support a claim under 42 U.S.C. § 1983. (J.A. 9)

The case was tried before a jury in February of 1984.

(J.A. 12.) At the close of plaintiffs’ evidence, defend-

ants Malley and the State of Rhode Island moved for a

directed verdict. (Tr. 141.) The trial judge granted the

motion as to both defendants. (J.A. 68.) Mr. and Mrs.

Briggs filed a Motion for New Trial or, in the Alterna-

tive, for Relief from Judgment, which was denied by the

trial judge. (J.A. 69, Pet. App. 24.) In ruling in favor

of Trooper Malley on both of these motions,’ the trial

judge determined that a policeman who believes the facts

in his arrest warrant affidavit to be true and who sub-

‘Because Mr. and Mrs. Briggs did not appeal the Judge’s

ruling in favor of the State of Rhode Island, that ruling is not at

issue here and accordingly is not discussed.

10

mits such an affidavit to a neutral and detached judge

for a probable cause determination cannot be held liable

under 42 U.S.C. §1983 for two reasons: (1) such a

policeman is immune from liability; and (2) the judge’s

intermediate decision to issue an arrest warrant breaks

the causal chain and insulates such a policeman from lia-

bility. (Pet. App. 19-28.)

Mr. and Mrs. Briggs appealed from the judgment in

favor of Trooper Malley. The Court of Appeals for the

First Cireuit reversed the trial judge, deciding that ‘‘judi-

cial approval of a warrant cannot act as an absolute bar

to the § 1983 liability of the officer who obtained the war-

rant.’? Briggs v. Malley, 748 F.2d 715, 721 (1st Cir. 1984)

(Pet. App. 16). The court emphasized that § 1983 liability

will attach where an officer is ‘‘ ‘constitutionally negli-

gent,’ that is, where the officer should have known that

the facts recited in the affidavit did not constitute prob-

able cause... .’’ Jd. On the other hand, in those cases

in which ‘‘the sufficiency of the facts fall into the grey

area appropriate for judicial determination, submission

of the affidavit to a magistrate will insulate the officer

from liability.’ Jd. Because the Court of Appeals de-

termined that the district court had improperly directed

a verdict for Trooper Malley, the court reversed and re-

manded for a new trial.

SUMMARY OF ARGUMENT

Petitioners ask this Court to adopt the rule that a

police officer cannot be held liable under 42 U.S.C. § 1983

for damages resulting from an arrest, when the only alle-

11

gation made against the police officer is that he knew or

should have known that the affidavit that he submitted to

a neutral and detached magistrate in an application for

an arrest warrant lacked sufficient facts to establish prob-

able cause for the arrest, even though the neutral and de-

tached magistrate issued the arrest warrant based upon

his finding that probable cause for arrest existed. This

request is based on two alternative grounds.

I. First, a police officer whose only alleged miscon-

duet is that he submitted an allegedly insufficient affidavit

to a neutral and detached magistrate in an application for

an arrest warrant should be absolutely immune from lia-

bility under 42 U.S.C. § 1983. This absolute immunity

should be applied to a police officer in this situation be-

cause the function that he is performing in this instance

is analogous not only to the common law function per-

formed by the prosecuting complainant but also to the

common law function performed by the prosecuting attor-

ney in initiating a criminal prosecution. Because both of

these functions historically have been accorded absolute

immunity, and because the function performed by the

police officer in this sitaution is so functionally similar to

these immune functions, the police officer should be ac-

corded absolute immunity for his conduct in submitting

an allegedly deficit affidavit to a magistrate in an appli-

cation for an arrest warrant.

The application of absolute immunity to a police offi-

cer in this situation also is supported by important policy

and interest considerations. Because the police officer

who applies for an arrest warrant is involved in a situa-

tion that arouses the most intense emotions in the indi-

viduals for whom he is seeking the warrant, and because

12

these feelings are not easily assuaged by the magistrate’s

decision to issue the arrest warrant, retaliatory litigation

is to be expected. It is just because of the explosive na-

ture of police work, however, that the protection offered by

absolute immunity is required te allow the police officer

to deal fearlessly with the public pressures and emotions

involved in his work. On the other hand, providing such

absolute immunity to a police officer will not leave al-

legedly wronged individuals witheut sufficient protection,

for they have all of the protections inherent in the judicial

process as well as alternative remedies of criminal prose-

cution and state tort actions for civil liability in applicable

situations.

Moreover, applying absolute immunity to a police offi-

cer in this situation will serve the policy reasons inherent

in this Court’s stated preference for the use of arrest

warrants and the established division of functions between

magistrates and police officers. The Court has expressed

a strong preference for the use of warrants in making

arrests because such use of warrants, by providing for

magisterial review and independent determination of the

existence of probable cause, provides for the maximum

protection of an individual’s rights. From this principle

the Court has acknowledged that there is a division of

functions between police officers and magistrates: the

police officer’s function is primarily one of ferreting out

crime, while the magistrate’s function is primarily one of

determining the existence of probable cause and issuing

the appropriate warrants. By applying to a magistrate

for approval of his proposed arrest warrant, a police offi-

cer is conducting himself exactly as this Court has strong-

ly indicated that it wants him to conduct himself, thereby

assuring the maximum protection of individual rights.

13

The Court of Appeals’ decision, however, ignores the

Court’s preference and policy in this area and requires

that the police officer take on the neutral and detached

function of the magistrate. Not only must the police offi-

cer make an accurate determination of the existence of

probable cause before he applies to the magistrate for an

arrest warrant, but the police officer must also assume

a role even more skilled in evaluating probable cause than

the magistrate. Such a policy is completely at odds with

the reasoning of this Court, for it ignores the distinet

functions of the magistrate and the police officer and in

fact tends to discourage officer applications for arrest

warrants.

Accordingly, because the function performed by the

police officer in this situation historically has been ac-

corded absolute immunity, because the Court of Appeals’

rule is so at odds with this Court’s policy of preferring

and encouraging police officers to seek warrants from

neutral and detached magistrates, and because granting

absolute immunity to police officers in this situation will

support and is entirely consistent with policy considera-

tions stated by this Court, the Court should grant police

officers absolute immunity in this situation.

Il. Second, a police officer whose only alleged mis-

conduct is that he submitted an allegedly insufficient affi-

davit to a neutral and detached magistrate in an applica-

tion for an arrest warrant has acted in an objectively rea-

sonable manner and is entitled to qualified immunity.

Such an application of qualified immunity is consistent

with this Court’s standard of ‘‘objective reasonableness’’

that is “measured by reference to clearly established law”

because a police officer should be deemed to be acting in

14

an objectively reasonable manner when he conscientiously

follows the procedure prescribed by this Court in its stated

preference for the use of warrants and in its establishment

of the division of functions between magistrates and police

officers.

off}

Vv

ARGUMENT

Petitioners ask this Court to adopt the rule that a

police officer cannot be held liable under 42 U.S.C. 4 1983

for damages resulting from an arrest, when the only alle-

gation made against the police officer is that he knew or

should have known that the affidavit that he submitted

to a neutral and detached magistrate in an application for

an arrest warrant lacked sufficient facts to establish prob-

able cause for the arresi, even though the neutral and

detached magistrate issued the arrest warrant based upon

his finding that probable cause for arrest existed.’ Peti-

tioners base this request on two alternative grounds: (1)

that a police officer in this situation should be absolutely

immune from liability because the ‘‘special functions’’

performed by an officer in such an instance require a

full exemption from liability; or (2) that a police officer

SThis proposed rule covers only those situations in which

the police officer is allegedly mistaken in his belief that the

facts submitted to the neutral and detached magistrate consti-

tuted probable cause. It would not apply in those situations

in which the police officer allegedly misled the magistrate by

information in the affidavit that the police officer knew was

false or would have known was false except for his reckless

disregard of the truth. See United States v. Leon, — U.S. —,

104 S.Ct. 3405, 3421 (1984).

15

in this situation should be qualifiedly immune from lia-

bility because it is per se reasonable in such an instance

for the officer to submit an affidavit and application for

arrest warrant to a neutral and detached magistrate for

his review.

This Court has stated the policies underlying 42 U.S.C.

§ 1983 in a very broad way, indicating that these policies

“include compensation of persons injured by deprivation

of federal rights and prevention of abuses of power by

those acting under color of state law.” Robertson v. Weg-

mann, 436 U.S. 584, 590-91 (1978). See also Burnett v.

Grattan, — U.S. —, 104 S.Ct. 2924, 2931 (1984). Despite

these broadly stated policies, and although § 1983 has no

immunities on its face, this Court has “consistently con-

strued” that statute “as not intending wholesale revoca-

tion of the common-law immunity afforded government

officials.” Procunier v. Navarette, 434 U.S. 555, 561 (1978).

By enacting this statute,

Congress . . . expressed no intention to do away with

the immunities afforded state officials at common law,

and the Court consistently has declined to construe

the general language of § 1983 as automatically abol-

ishing such traditional immunities by implication.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258

(1981).

The Court’s decisions have recognized two kinds of

immunity defenses to § 1983 liability: absolute immunity

and qualified immunity. Imbler v. Pachtman, 424 U.S.

409, 418-19 (1976). See also Harlow v. Fitzgerald, 457

U.S. 800 (1982); Butz v. Economou, 438 U.S. 478 (1978).°

*Although the Court’s decisions in Harlow and Butz deal

with the question of the liability of federal officials who are

(Continued on following page)

16

Absolute immunity “bars a suit at the outset and frees

the defendant official of any obligation to justify his ac-

tions,” Gray v. Bell, 712 F.2d 490, 495-96 (D.C. Cir. 1983),

cert. denied, — U.S. —, 104 S.Ct. 1598 (1984), if the “offi-

cial’s actions were within the scope of the immunity.”

Imbler v. Pachtman, 424 U.S. at 419 n.13. Qualified im-

munity, on the other hand, “protects an official from lia-

bility only if he can show that his actions did not contra-

vene clearly established statutory or constitutional rights

of which a reasonable person in his position should have

known.” Gray v. Bell, 712 F.2d at 496. See Harlow v.

Fitzgerald, 457 U.S. at 2738-39.

Under either theory of immunity, a police officer

should be immune from liability under 42 U.S.C. ¢ 1983

for submitting allegedly legally deficient affidavits to a

neutral and detached magistrate in an application for an

arrest warraut. Accordingly, Part | of this argument will

examine the question of the police officer’s absolute im-

munity in this situation and will show that absolute im-

munity should be applied to the police officer because:

(1) common Jaw immunity existed for the function being

performed by the police officer in this instance; and (2)

strong policy reasons support granting this absolute im-

munity. Part Il of this argument will examine the ques-

(Continued from previous page)

sued pursuant to Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), rather than the question of the

liability of state officials who are sued pursuant to 42 U.S.C.

§ 1983, the Court has made it clear that it is “untenable to draw

a distinction for purposes of immunity law between suits

brought against state officials under § 1983 and suits brought

directly under the Constitution against federal officials.” Butz

v. Economou, 438 U.S. at 504. See also Harlow v. Fitzgerald,

457 U.S. at 818 n.30.

7

tion of the police officer’s qualified immunity and will

show that a police officer in this situation acted in a per

se objectively reasonable manner and therefore is entitled

to qualified immunity.

I.

A Police Officer Should Have Absolute Immunity

From Liability Under 42 USC. § 1983 When His

Only Alleged Misconduct Is That He Submitted

An Allegedly Insufficient Affidavit To A Magi-

strate In An Application For An Arrest Warrant.

The Court has recognized that “there are some offi-

cials whose special functions require a full exemption from

liability.” Butz v. Economou, 438 U.S. at 508. See also

Briscoe v. LaHue, 460 U.S. 325 (1983): Harlow v. Fite-

gerald, 457 U.S. at 810-11. These officials are granted

such an absolute immunity “not because of their particular

location within the Government but because of the special

nature of their responsibilities.” Butz v. Economou, 438

U.S. at 511. Aceordingly, the Court has held that abso-

lute immunity applies to judges for their judicial acts,

Stump v. Sparkman, 435 U.S. 349, 359 (1978); Prerson v.

Rau, 386 U.S. 547, 554-55 (1967) ;’ to legislators for their

legislative activities, Tenney v. Brandhove, 341 U.S. 367

(1951); to prosecutors for their prosecutorial functions

of initiating prosecution and presenting the State’s case,

‘Because the role of federal agency hearing examiners or

administrative law judges is “functionally comparable” to that

of a judge, such officials are also absolutely immune from li-

ability for their judicial acts. Butz v. Economou, 438 U.S. at

513-14.

18

Imbler v. Pachtman, 424 U.S. at 4380-31;° to the President

of the United States “for acts within the ‘outer perimeter’

of his official responsibility,” Nixon v. Fitzgerald, 457 U.S.

731, 756 (1982); and to witnesses at trials. Briscoe v.

LaHue, 460 U.S. at 342-45.

In determining whether the special functions and re-

sponsibilities of certain officials qualify them for absolute

immunity, the Court has considered whether the proposed

immunity meets certain criteria. First, the Court has con-

sidered the question cf whether the official or the function

was “historically accorded” immunity. IJmbler v. Pacht-

man, 424 U.S. at 421. If such historical immunity existed,

then the Court has considered whether policies and inter-

ests support the continuation of tne immunity. City of

Newport v. Facts Concerts, Inc., 453 U.S. at 259; Imbler v.

Pachtman, 424 U.S. at 421. After examining these criteria

as they apply in the instant case, it wili become elear that

a police officer should be accorded absolute immunity for

his decision to submit an allegedly insufficient affidavit to

a neutral and detached magistrate in an application for an

arrest warrant.

8Federal agency officials performing functions “analogous

to those of a prosecutor,” i.e., deciding to initiate proceedings

against an individual or corporation, or conducting a trial and

presenting evidence on the record to the trier of fact, are also

absolutely immune from liability for those functions. Butz v.

Economou, 438 U.S. at 515-17.

In addition, an attorney employed by the Department of

Social Services has been held to be absolutely immune from

liability for her act of requesting an arrest warrant from a Judge,

because her position and responsibility were similar to those

of a prosecuting attorney. Walden v. Wishengrad, 745 F.2d 149

(2nd Cir. 1984).

19

A. The Function Performed By The Police Of-

ficer In Submitting An Allegedly Insufficient

Affidavit To A Magistrate In An Application

For An Arrest Warrant Historically Has Been

Accorded Absolute Immunity.

The function performed by the police officer in this

matter is the common law function of the prosecuting com-

plainant: placing a complaint about an individual before

the magistrate and asking the magistrate to act by issuing

a warrant for the individual’s arrest. Historically, this

function of applying to a magistrate for an arrest warrant

was accorded immunity from tort actions at common law

if the only allegation of misconduct was that the applica-

tion was legally insufficient. The ‘‘main proposition” at

common law was that a prosecuting complainant “is pro-

tected by a judicial decision, though erroneous, that the

facts alleged by him support the criminal charge... .” 21

A.L.R. 2d 643, 662.

Where a person in good faith lays his complaint be-

fore a justice of the peace and calls upon him to act

and the justice concludes to issue a warrant, the com-

plainant cannot be made answerable to the accused

however mistakenly or erroneously the justice may

have acted.

Id., quoting Brueckner v. Frederick, 109 Mo. App. 614, 83

S.W. 775 (1904). See Madison v. Manter, 441 F.2d 537,

538 (1st Cir. 1971) (“a private citizen who seeks a warrant

20

[with an insufficient affidavit] would not be liable”), and

eases cited therein. The basis for this rule stems from

the injustice of holding the complainant liable because of

a judge’s mistake; such an action “would not only be

grossly unjust but would also be highly injurious to the

public interest.” 21 A.L.R. 2d 639, 642, quoting Gogue v.

MacDonald, 35 Cal. 2d 482, 218 P.2d 542 (1950). See

Madison v. Manter, 441 F.2d at 538 (“any stricter rule

would discourage proper action”). This follows from the

long-standing common law rule regarding false imprison-

ment, that “[{i]n criminal cases the party who prefers the

charge is not liable unless it is made maliciously . .. ; for

the law encourages the exposure of crime.” M. BicELow,

Leapinc Cases On Tue Law Or Torts, 289 (1875). See also

J. Bishop, CommMentarres On THe Non-Contract Law,

§ 211 (1889) (complainant is not liable if he states the facts

to the proper officers and the officers act upon their in-

dependent judgment).° .

Accordingly, under common law principles, a com-

plainant could not be found liable for damages resulting

°This same principle holds true for the tort of malicious

prosecution. J. BISHOP, COMMENTARIES OF THE NON-CON-

TRACT LAW, at 230. Moreover, in a tort action for malicious

prosecution, it is a defense that the complainant sought the

advice of professional counsel, i.e., a practicing lawyer, “upon

the question whether the facts within his knowledge are such

as to justify a complaint,” and acted “bona fide upon the advice

given,” however erroneous. M. BIGELOW, ELEMEI ‘TS OF THE

LAW OF TORTS, 83 (1878). See also J. BISHOP, COMMEN-

TARIES ON THE NON-CONTRACT LAW, at § 236.

Moreover, the rule “in most jurisdictions” is that ‘‘the de-

terminations of a judge acting within his jurisdiction, even if

erroneous, are valid and binding until they are set aside under

some recognized procedure.” Massachusetts v. Sheppard, —

U.S. —, 104 S.Ct. 3424, 3429 (1984).

21

from an arrest made with a warrant if the only allega-

tion made against the complainant was that he submitted

an affidavit with insufficient facts to establish probable

cause to a magistrate who erroneously issued the warrant.

Because this Court’s immunity analysis rests on “fune-

tional categories, not on the status of the defendant,”

Briscoe v. LaHue, 460 U.S. at 342 (footnote omitted), the

immunity allowed to lay complainants should also apply

to police officer complainants.’ The function performed

by a complainant is the same whether the complainant is a

private citizen or a police officer: to bring the facts be-

fore the judicial officer for his independent determination

of whether probable cause exists and whether the warrant

should issue. Therefore, the same immunity should apply

to both the private citizen and the police officer when

they act in the role of complainant.

In addition, the function performed by the police offi-

cer in this situation is very similar to the function per-

formed by a prosecuting attorney in initiating a criminal

prosecution, which function is accorded absolute immunity

from civil liability. See Imbler v. Pachtman, 424 U.S. at

427. The police officer’s decision to seek an arrest war-

rant from a magistrate is very much like the prosecutor’s

decision to initiate or move forward with a criminal prose-

eution: both are major decisions regarding whether an

individual will face criminal charges and will have to un-

dergo certain criminal proceedings. Once the police offi-

In Briscoe, the Court rejected making a distinction be-

tween immunity for ordinary witnesses and immunity for police

officer witnesses. The Court found that ‘considerations of pub-

lic policy” supported immunity for police officer witnesses.

Briscoe v. LaHue, 460 U.S. at 342.

22

cer obtains an arrest warrant for an individual, just as

once the prosecutor decides to initiate criminal prosecu-

tion, the individual is made a part of the criminal judicial

process. Both the police officer and the prosecutor “exer-

cise a discretionary judgment on the basis of evidence pre-

sented to them.” Jd. at 423 n.20. Accordingly, the abso-

lute immunity available to the prosecutor at common law

for his decision to initiate a prosecution, id. at 421-23,

should be applied to a police officer who performs the

similar function of initiating criminal proceedings by seek-

ing an arrest warrant from a magistrate. See Putz v.

Economou, 438 U.S. at 515 (absolute immunity applies

to federal agency officials who perform similar functions

to those of a prosecutor by initiating agency proceedings

against an individual or corporation).

Therefore, because the function performed by a po-

lice officer in applying to a neutral and detached magis-

trate for an arrest warrant was historically accorded im-

munity at common law, both as a function performed by

a prosecuting complainant and as a function performed

by a prosecuting attorney, a police officer who performs

this function should be granted absolute immunity.

B. Important Policies And Interests Support

Providing Absolute Immunity To A Police

Officer Who Applies To A Magistrate For An

Arrest Warrant.

This Court has recognized that granting absolute im-

munity to a public official “‘may impose a regrettable cost

on individuals whos. rights have been violated.” Nixon

v. Fitzgera'd, 457 U.S. at 754 n.37. See also Butz v.

23

Economou, 438 U.S. at 504-05. On the other hand, the

Court has recognized that there are instances in which

the alternative of qualifying an official’s immunity ‘‘would

disserve the broader public interest.” IJmbler v. Pacht-

man, 424 U.S. at 427. In attempting to resolve these con-

flicting interests, the Court has stated its agreement with

Judge Learned Hand:

“As is so often the case, the answer must be found

in a balance between the evils inevitable in either

alternative. In this instance it has been thought in

the end better to leave unredressed the wrongs done

by dishonest officers than to subject those who try

to do their duty to the constant dread of retaliation.”

Imbler v. Pachtman, 424 U.S. at 428, quoting Gregoire v.

Biddle, 177 F.2d 579, 581 (2nd Cir. 1949), cert. denied,

339 U.S. 949 (1950).

Thus, in determining whether absolute immunity

should be applied to a police officer who submitted an

allegedly insufficient affidavit to a magistrate in an appli-

cation for an arrest warrant, the cost on the allegedly

wronged individual must be weighed against the broader

public interest. Because in this situation the public inter-

est in granting the immunity to the police officer so out-

weighs the cost to an individual in being barred from dam-

ages recovery under § 1983, the police officer should be

granted absolute immunity.

1. Traditional policy reasons supporting ab-

solute immunity apply to a police officer

performing this function.

In its decision to apply absolute immunity to certain

prosecutorial, judicial, 'egislative, presidential, and wit-

24

ness functions, the Court has cited several policy reasons

to support the application of such immunity to the funce-

tions in question. The officials performing these functions

are involved in “cases that arouse the most intense feel-

ings in the litigants,” Pierson v. Ray, 386 U.S. at 554, and

in controversies likely to be so intense that they ‘‘are

not easily capped by a judicial decree.” Butz v. Economou,

438 U.S. at 512. Resentment at the official decisions in

such matters could be expected to erupt into frequent

retaliatory litigation, Imbler v. Pachtman, 424 U.S. at

425-26, and the officials could find themselves hounded by

litigation charging malice or corruption. Pi. rson v. Ray,

386 U.S. at 554. It is just in such intense situations, how-

ever, “that there exists the greatest public interest in

providing an official ‘the maximum ability to deal fear-

lessly and impartiaily with’ the duties of his office,” Nixon

v. Fitzgerald, 457 U.S. at 752, quoting Ferri v. Ackerman,

444 U.S. 193, 203 (1979), and to exercise the “independence

of judgment required by his public trust.” IJmbler v.

Pachtman, 424 U.S. at 423. Moreover, facing the pos-

sibility of liability for damages ‘‘may render an official

unduly cautious in the discharge of his official duties.”

Nizon v. Fitzgerald, 457 U.S. at 752-53 n.32. It is essen-

tial that these officials be assured that they ‘‘ecan perform

their respective functions without harassment or intimida-

tion.” Butz v. Economou, 438 U.S. at 512.

These same policy reasons apply to the situation in

which a police officer applies to a neutral and detached

magistrate for an arrest warrant. This is the exact type

of official action that arouses the ‘‘most intense feelings”

in the individuals involved, feelings not “easily capped”

by the magistrate’s decision that probable cause exists

and that an a:rest warrant should issue. Because police

officers are on the “front line” and often are more open

to public exposure and criticism than even judges and

prosecutors, their decisions regarding seeking arrest war-

rants are even more likely to arouse emotions and to

erupt into retaliatory litigation than the decisions of those

other public officers. It is just because of the explosive

nature of their work in seeking warrants, however, that

police officers require the protection offered by absolute

immunity to allow them to deal fearlessly with the public

pressures and emotions and to meet the public trust re-

posed in them. A police officer must be able to apply

to a neutral and detached magistrate whenever, in his

independent judgment, such application is warranted; he

should not be intimidated by the fear that he could face

civil liability if the magistrate’s approval of his warrant

request turns out to be erroneous. If the police officer

does not receive immunity in such instances, it is likely

that “harassment by unfounded litigation” may ‘‘cause a

deflection of [his] energies from his public duties, and

the possibility that he would shade his decisions instead

of exercising the independence of judgment required by

his public trust.” Jmbler v. Pachtman, 424 U.S. at 423.

Moreover, providing such immunity to a police officer

will not leave allegedly wrong individuals without suffi-

cient protection. ‘‘The presence of alternative remedies

[to civil liability] has played an important role” in the

Court’s decisions to provide absolute immunity. Nixon v.

Fitzgerald, 457 U.S. at 757 n.38. See also Parratt v.

Taylor, 451 U.S. 527 (1981). These ‘‘alternative” reme-

dies include impeachment of the President and federal

judges, removal of legislators from office by a vote of

26

their colleagues, and other formal and informal checks

on Presidential action. Nixon v. Fitzgerald, 457 U.S. at

757 and 757 n.38. As to the participants in the judicial

process who have been granted such functional immunity,

i.e., judges, prosecutors, and witnesses, ‘‘the safeguards

built into the judicial process tend to reduce the need

for private damages actions as a means of controlling

unconstitutional conduct.” Butz v. Economou, 438 U.S.

at 512. For example, a judge’s errors may be cor-

rected on appeal, Pierson v. Ray, 386 U.S. at 554, while

prosecutors’ actions often receive close and direct judi-

cial scrutiny, Gray v. Bell, 712 F.2d at 501, as well as

monitoring by adversaries in the courtroom and re-

straint by professional obligations. Butz v. Econ-

omou, 438 U.S. at 512. “Witnesses are, of course, subject

to the rigors of cross-examination,” /d., and all three

actors in the judicial process are subject to the penalties

of the criminal law. I/d.; Imbler v. Pachtman, 424 US.

at 429.

These same considerations apply to a police officer

who is applying to a magistrate for an arrest warrant.

As soon as the police officer applies to a magistrate for

an arrest warrant, the police officer becomes part of the

judicial process, with all of the rigors and safeguards

that attach to the process. His affidavit and application

for arrest warrant are subject to judicial scrutiny and

to rejection if they do not meet required standards. Even

if an insufficient application is approved by the mag-

istrate and an arrest warrant is issued, the error is still

subject to review and correction by other actors within

the judicial process: the grand jury, prosecuting attor-

td om 8 PO er) Crm eek oe 8 en ES CR oo — —2 oD see hte rin =

27

neys, other trial or appellate judges, a jury."' In addition,

other remedies are available to an individual who alleges

that he has been wronged by a police officer’s application

for an arrest warrant: in certain situations criminal

prosecution may be available, as may civil liability in

state tort actions.” Thus, the numerous safeguards built

into the system and the alternative remedies available

do reduce the need for private damage actions in this

area and provide sufficient protection to allegedly wronged

individuals.

Accordingiy, the traditional policies requiring abso-

lute immunity to protect an official from the explosive

‘This consideration is apparent in this case. Mr. and Mrs.

Briggs were arrested on a warrant that they allege lacked prob-

able cause; the grand jury returned a no true bill regarding

them. Thus, any damage incurred by Mr. and Mrs. Briggs as

the result of this allegedly unlawful arrest was minimized by

the protections inherent in the judicial system.

In the instant case, the Court of Appeals expressed con-

cern that:

[t]he absolute judicial immunity of the magistrate pre-

cludes suit — him or her. Were we to permit the in-

terposition of the magistrate between the police officer and

the warrant to immunize the negligence of the police of-

ficer, such plaintiffs would be remediless.

Briggs v. Malley, 748 F.2d at 720. Although Mr. and Mrs. Briggs

may be “remediless” regarding recovering damages under 42

U.S.C. § 1983 if absolute immunity is applied to Trooper Malley

in this case, they certainly are not “remediless” in the context

used by this Court. As the Court has noted:

It never has been denied that absolute immunity may im-

co a regrettable cost on individuals whose rights have

een violated. But... it is not true that our jurisprudence

ordinarily supplies a remedy in civil damages for every

legal wrong.

Nixon v. Fitzgerald, 457 U.S. at 754 n.37.

28

feelings generated by his official actions and to allow him

to act without intimidation and harassment, and the pres-

ence of the safeguards of the judicial process and alter-

native remedies to allow sufficient protection to an indi-

vidual, both point to the soundness of applying absolute

immunity to a police officer who submits allegedly in-

sufficient affidavits to a magistrate in an application for

an arrest warrant.

2. Applying absolute immunity to a police

officer in this situation will serve the pol-

icy reasons inherent in this Court’s pref-

erence for the use of arrest warrants and

the established division of functions be-

tween magistrates and police officers.

This Court has expressed a “strong preference for war-

rants’’ on which to base arrests or searches. United States

v. Leon, — U.S. —, 104 S.Ct. 3405, 3417 (1984)." This

preference for warrants stems from the Court’s belief that

“lajn arrest without a warrant bypasses the safeguards

provided by an objective determination of probable cause,”’

Beck v. Ohio, 379 U.S. 89, 96 (1964), because “lt|he war-

\3Petitioners disagree with the court below and with re-

spondents regarding the conclusiveness of the Court's ruling

in Leon regarding the question of a police officer's liability un-

der 42 U.S.C. § 1983. Although we recognize the importance

of Leon in defining boundaries for the exclusionary rule, and

we draw guidance from it concerning the Court's view of the

relationship between magistrates and police officers, we do

not believe that a case deciding a question of whether evidence

should be excluded in a criminal proceeding should be dis-

positive of a question regarding the civil liability of a police

officer under 42 U.S.C. § 1983. For that reason, while recog-

nizing that Leon provides guidance for criminal proceedings,

we believe that this Court’s traditional analysis of § 1983 li-

ability is much more revelant to this case.

29

rant traditionally has represented an independent assur-

ance that a search and arrest will not proceed without

probable cause to believe that a crime has been committed

and that the person or place named in the warrant is in-

volved in the crime.’’ Shadwick v. City of Tampa, 407

U.S. 345, 350 (1972). This ‘‘objective determination”’

and ‘‘independent assurance’’ of probable cause is pro-

vided by the neutral and detached magistrate to whom the

application for arrest or search warrant is made. Id.

Therefore, ‘‘[t]o implement the Fourth Amendment’s pro-

tection against unfounded invasions of liberty and pri-

vacy, the Court has required that the existence of probable

cause be decided by a neutral and detached magistrate

whenever possible.’’ Gerstein v. Pugh, 420 U.S. 103, 112

(1975). The ‘‘classie statement’’ of this principle, id., is

found in Johnson v. United States, 333 U.S. 10 (1948):

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its pro-

tection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead

of being judged by the officer engaged in the often

competitive enterprise of ferreting out crime.

Id. at 13-14 (footnote omitted). See United States v. Leon,

104 8.Ct. at 3416-17.

This policy decision of the Court to prefer that ar-

rests and searches be conducted pursuant to warrants is-

sued by neutral and detached magistrates recognizes that

there is a ‘‘reasonable division of functions’’ between

police officers and magistrates, Baker v. McCollan, 443

U.S. 137, 145 (1979): the police officer’s function is pri-

marily one of ferreting out crime, while the magistrate’s

30

function is primarily one of determining the existence of

probable cause and issuing the appropriate warrants. See

United States v. Leon, 104 S.Ct. at 3420 (‘‘It is the magis-

trate’s responsibility to determine whether the officer’s

allegations establish probable cause, and, if so, to issue a

warrant comporting in form with the requirements of the

Fourth Amendment.”). Using “terms that apply equally

to arrests,” the Court has “described the ‘very heart of the

Fourth Amendment directive’ as a requirement that ‘where

practical, a governmental search and seizure should repre-

sent both the efforts of the officer to gather evidence of

wrongful acts and the judgnient of the magistrate that the

collected evidence is sufficient to justify invasion of a citi-

zen’s private premises or conversation.’ ” Gerstein v. Pugh,

420 U.S. at 113 n.12, quoting United States v. United States

District Court, 407 U.S. 297, 316 (197.2).

Underlying the Court’s preference for warrants and

its division of functions between magistrates and police

officers in the warrant process is the Court’s belief that

the magistrate is, as a general rule, more qualified than

the police officer to make the dispassionate and objective

determination of whether probable cause exists for an

arrest or a search. This qualification of the magistrate

is based upon the requirement that a magistrate must be

‘‘neutral and detached,’’ a standard that requires ‘‘sever-

ance and disengagement from activities of law enforce-

ment.’? Shadwick v. City of Tampa, 407 U.S. at 349. See

United States v. Leon, 104 S.Ct. at 3418. This neutrality

and detachment is essential, because

‘‘the informed and deliberate determinations of magis-

trates empowered to issue warrants as to what

31

searches and seizures are permissible under the Con-

stitution are to be preferred over the hurried action

of officers and others who may happen to make ar-

rests. Security against unlawful searches is more

likely to be attained by resort to search warrants than

by reliance upon the caution and sagacity of petty

officers while acting under the excitement that attends

the capture of persons accused of crime.’’

Johnson v. United States, 333 U.S at 14 n.3, quoting

United States v. Lefkowitz, 285 U.S. 452, 464 (1932). In

addition to this requirement of neutrality and detachment,

@ magistrate is required to be ‘‘capable of determining

whether probable cause exists for the requested arrest or

search.’’ Shadwick v. City of Tampa, 407 U.S. at 350."

Accordingly, because the magistrate is required to meet

these two standards, obtaining ‘‘magistrate review of the

factual justification rrior to any arrest’’ assures the

‘*[mjaximum protection of individual rights.’’ Gerstein

v. Pugh, 420 U.S. at 113.

Providing that a police officer, who, in good faith,

seeks the magistraie’s review of the factual justification

prior to any arrest and receives the magistrate s approval,

is absolutely immune from potential liability under 42

U.S.C. § 1983 for damages resulting from the arrest even

though it later is determined that the magistrate’s ap-

proval was erroneous, not only supports but is entirely

consistent with this Court’s policy to prefer and encour-

age such magisterial review. By applying to a magistrate

Although it is not essential that a magistrate be a lawyer

or a judge, Shadwick v. City of Tampa, 407 U.S. at 349, 353, a

judge cr a lawyer normally will provide “the most desirable

review of warrant requesis.”” /d. at 353. 'n the instant case, the

reviewing magistrate is a Judge of the Rhode Island District

Court.

32

for approval of his proposed arrest warrant, a police offi-

cer is conducting himself exactly as this Court has strongly

indicated that it wants him to conduct himself. In other

words, the police officer has approached the “single-minded

protector’’ of an individual’s constitutional rights, Mad-

ison v. Manter, 441 I'.2d at 539, for a review of the offi-

cer’s factual information and for an independent deter-

mination of whether probable cause exists for the arrest.

The police officer should be required to do nothing more,

for he has sought and followed expert advice in the man-

ner prescribed by this Court, thereby assuring the maxi-

mum protection of individual rights.

If the Court of Appeals’ decision is left undisturbed,

and the police officer can face civil liability for obtaining ~

from a neutral and detached magistrate an arrest warrant

that is later determined te be defective for lack of prob-

able cause, this Court’s policy to prefer and encourage

such magisterial review and to divide the functions in the

arrest process between the magistrate and the police offi-

cer will be severely undermined. First, such a policy

allowing liability totally ignores the reasons why this

Court has given the magistrate, rather than the police offi-

cer, the primary responsibility for reviewing warrant ap-

plications: the magistrate has the better ability to be

neutral and detached, because he is independent of the

law enforcement activities that place the police officer in

the midst of the subjective fray of ferreting out crime.

The police officer is not expected to be able to be as objec-

tive as the magistrate, and neither should he be, for his

function is to be zealous, rather than neutral, and to be

actively competitive in fighting crime, rather than con-

templatively detached in reviewing factual allegations.

+ Alle antl et a ta GO A oe

33

The Court of Appeals’ decision, however, requires the

police officer to assume this contemplative detachment

and neturality of the magistrate, for it requires the police

officer to make an accurate determination of the existence

of probable cause before the police officer applies to the

magistrate for an arrest warrant.’

In addition, such a policy allowing police officer

liability in this situation ignores this Court’s premise that

the magistrate is more qualified than the police officer

to make a probable cause determination. The Court of

Appeals’ decision, in fact, reverses this premise, for it

requires the police officer to assume a role even more

skilled in this area than the magistrate. From now on,

according to the Court of Appeals, a police officer must

be able to accurately identify the presence or absence

'SThe Court of Appeals’ decision does in fact require this

pre-magistrate accurate determination of probable cause by the

police officer, because under the Court of Appeals’ standard

the police officer could face civil liability if he submits an affi-

davit and warrant to a magistrate, and the magistrate decides

that probable cause exists and issues the warrant, but a review-

ing court determines that the magistrate was erroneous and

that the affidavit did not establish probable cause. Thus, if

the police officer is wrong in his legal evaluation of the suf-

ficiency of the facts in the affidavit to establish probable cause,

he could face liability.

It is an illusion to argue that the police officer is protected

if the question of the sufficiency of the facts in the affidavit

falls within the Court of Appeals’ “grey area” appropriate for

judicial determination. Even if a police officer believes that his

case fits within the “grey area” and should be submitted to a

magistrate, he still could face liability if a reviewing court dis-

agrees with his assessment that the case fits within the “grey

area.”” it will be almost impossible for a police officer to de-

fine the subjective term “grey area” in a way that will help

him in his decision-making process in evaluating probable

cause.

34

of probable cause, even though such identification is un-

able to be made accurately by a neutral and detached mag-

istrate who has been trained in much greater detail than

the police officer to make such identification. Such a

standard of requiring sounder legal reasoning from a

police officer than from a magistrate is ludicrous and

completely at odds with the policy and reasoning of this

Court.'° See United States v. Barker, 547 F.2d 940, 947

(D.C. Cir. 1976) (‘It is neither fair nor practical to hold

such officials to a standard of care exceeding that exer-

cised by a judge.”).

Moreover, such a policy of liability not only would

do nothing to further the Court’s policy of encouraging

the use of warrants for arrests but would, in fact, tend

to discourage such use of warrants. As pointed out in

the Brief Amici Curiae of Americans for Effective Law

Enforcement, Inc., if a police officer is designated as the

“final arbiter” of probable cause, he may be encouraged

to forgo the warrant process and to arrest without a war-

rant, especially if he believes that the situation falls

within one of the warrant exceptions. Brief, pp. 6-7. See

also Illinois v. Gates, — U.S. —, 103 S.Ct. 2317, 2331

(1983). The Court of Appeals’ rule gives the police

officer no incentive to seek review of a warrant applica-

tion by a magistrate, for such magisterial review not only

161m fact, if the police officer is required in this way to as-

sume a role even greater than the role of the magistrate, and

to perform the magistrate’s function even more accurately than

the magistrate is required to do, then the police officer should

be gra ted the absolute immunity protection that is granted

to an official performing such a judicial function. See Butz v.

Economou, 438 U.S. at 513-14; Pierson v. Ray, 386 U.S. at

554-55.

ee ee a a

35

might not help the police officer in his determination re-

garding the existence of probable cause but also could

serve to mislead the police officer into believing that prob-

able cause exists when in fact it does not.

Therefore, because the Court of Appeals’ rule is so

at odds with this Court’s policy of preferring and encour-

aging police officers to seek warrants from neutral and

detached magistrates, and because granting immunity to

police officers in this situation will support and is entirely

consistent with this Court’s policy, the Court should grant

police officers absolute immunity in this situation.

II.

A Police Officer Who In Good Faith Applies To A

Magistrate For An Arrest Warrant Acts In An

Objectively Reasonable Manner And Is Entitled

To Qualified Immunity.

This Court’s most recent decision regarding the stand-

ard by which to judge the qualified immunity available to

government officials is Harlow v. Fitzgerald, 457 U.S. 800

(1982), in which the Court held ‘‘that government o/sficials

performing discretionary functions are shielded from li-

ability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”

Id. at 818. This standard is one of ‘‘objective reasonable-

ness . . . measured by reference to clearly established

law.” Id. (footnote omitted).

The Court of Appeals decided that the Harlow stand-

ard ‘‘should be understood to prohibit conduct which is

36

‘constitutionally negligent.’” Briggs v. Malley, 748 F.2d

at 718 (Pet. App. 16). In the situation where a police

officer submits affidavits in support of an application for

an arrest warrant to a judge, the Court defined “constitu-

tionally negligent” to be that situation in which the officer

seeks judicial determination of sufficiency of an affidavit

if the officer should have known that the facts recited in

the affidavit did not constitute probable cause. /d. at 721.

Such a policy, while ostensibly relying on the Harlow

standard, actually conflicts with the basic principles enun-

ciated in Harlow. The Har'ow Court was concerned with

defining the standard for qualified immunity as one of

‘objective reasonableness” that would be “measured by

reference to clearly established law.” Harlow v. Fitz-

gerald, 457 U.S. at 818. The Court of Appeals’ decision,

however, is inconsistent with the Harlow standard, for it

requires in every instance a speculative determination of

what the police officer should have known regarding the

existence of probable cause in the affidavits submitted to

the magistrate. Only by a thorough case-by-case analy-

sis will a court be able to begin to meet the requirements

of this standard, and even then it will be a difficult task

to accomplish, because ‘‘probable cause is a fluid concept

. not readily, or even usefully, reduced to a neat set

of legal rules.” Jllinois v. Gates, 103 S.Ct. at 2328. See

United States v. Leon, 104 S.Ct. at 3417 (“Reasonable

minds frequently may differ on the question wheth-

er a parucular affidavit establishes probable cause . . .”).

Such a vague and uncertain standard should not be accept-

able under the Harlow “objective reasonableness” stand-

ard.

37

On the other hand, in the situation in which a police

officer applies to a magistrate for an arrest warrant,

and the only allegation of misconduct against the police

officer is that he knew or should have known that the

facts stated in his affidavit were insufficient to establish

probable cause, it should be clear that the police officer

acted in an “objectively reasonable” fashion in accordance

with ‘‘clearly established law.” As shown supra at pp. 28-

38, this Court had made its preference for the use

of arrest warrants very clear and has repeatedly em-

phasized that it is the magistrate’s, rather than the police

officer’s, role to determine whether probable cause for

arrest exists. If a police officer conscientiously follows

the procedure required by this Court, and submits his

application for an arrest warrant to a neutral and de-

tached magistrate for review, he should be found to be

‘‘objectively reasonable” in his actions, and therefore

immune from civil liability under 42 U.S.C. § 1983, de-

spite any allegation that he knew or should have known

that the affidavits that he submitted were legally deficient.

Even if it later is determined that the magistrate was

wrong in his decision to issue the warrant because prob-

able cause was lacking, the police officer still should be

held to be objectively reasonable in his behavior, for

“fajn error of constitutional dimensions may have been

committed ..., but it was the judge, not the police offic-

er{| ], who made the critical mistake.” Massachusetts v.

Sheppard, — U.S. —, 104 S.Ct. 3424, 3429 (1984).

Therefore, according to the “objectively reasonable”

standard for qualified immunity, a police officer should

be immune from liability when he acts objectively reason-

ably by submitting an affidavit to a neutral and detached

magistrate in an application for an arrest warrant, even

though it is alleged that he knew or should have known

38

that the affidavit was legally insufficient to establish

probable cause to arrest.

ra’

Ww

CONCLUSION

Because of the legal and policy considerations out-

lined above, the Court of Appeals was incorrect in hold-

ing that a police officer is constitutionaily negligent, and

therefore subject to liability under 42 U.S.C. § 1983, in

those situations in which the officer should have known

that the facts recited in an affidavit submitted to a mag-

istrate in an application for an arrest warrant did not

constitute probable cause. Petitioners therefore request

that this Court reverse the decision of the Court of Ap-

peals and adopt the rule that a police officer cannot be

held liable under 42 U.S.C. § 1983 for damages resulting

from an arrc.-, when the only allegation made against

the police officer is that he knew or should have known

that the affidavit that he submited to a neutral and de-

tached magistrate in an application for an arrest warrant

lacked sufficient facts to establish probable cause for the

arrest, even though the neutral and detached magistrate

issued the arrest warrant based upon his finding that

probable cause for arrest existed.

Respectfully submited,

ARLENE VIOLET

Attorney General of the

State of Rhode Island

Ann M. SHEADEL

Assistant Attorney General

72 Pine Street

Providence, RI 02903

(401) 274-4400