Amicus Curiae Brief — Malley v. Briggs

BEST AVAILABLE COPY ul

IN THE | SEP TT 985

Supreme Court of the United Stytes,, -. senor se

OCTOBER TERM, 1984

>

EDWARD MALLEY and THE STATE OF RHODE ISLAND,

Petitioners,

‘inal Naps

JAMES R. BRIGGS and LOUISA BRIGGS,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

BRIEF OF

THE AMERICAN CIVIL LIBERTIES UNION AND

THE RHODE ISLAND CIVIL LIBERTIES UNION

AS AMICI CURIAE

JACK D. NOVIK STEVEN P. LOCKMAN

BURT NEUBORNE Counsel of Record

American Civil Liberties JONATHAN D. SCHWARTZ

Union Foundation Arnold & Porter

132 West 43rd Street 1200 New Hampshire Ave., N.W.

New York, NY 10036 Washington, DC 20036

(212) 944-9800 (202) 872-6782

LYNETTE LABINGER

Rhode Island Civil

Liberties Union

344 Wickenden Street

Providence, RI 02903

(401) 421-9794

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Be Ge EB BOs cc ccc ccc cccesceces (iii)

INTEREST OF AMICI CURIAE............... 2

Dn Tt DEC cocseceecodevsserece 3

EE ra 8

A POLICE OFFICER WHO PROCURES A

WARRANT IN AN OBJECTIVELY UNREASON-

ABLE MANNER IS LIABLE FOR DAMAGES

Sees Se ctw DB BOP ec ccccdccesvcccecs 8

A. In the Absence of Absolute

Immunity, a Police Officer Is

Liable for Damages Under

Section 1983 for Procuring A

Patently Groundless Warrant........ 9

B. Police Officers Do Not Have

Absolute immunity in Connection

with Arrests of Private Citizens... 15

1. Police Officers Have Always

Enjoyed Only Qualified

Immunity from Liability........ 16

(i)

Page

Qualified Immunity Will Deter

Police Officers from Procuring

Patently Groundless Warrants... 17

Qualified Immunity Is Consis-

tent With the Interests of

Effective Law Enforcement...... 23

Since a Warrant Is Often

Constitutionally Required,

the Use of a Warrant Should

Not Result in Absolute

Tqmmumity...cccvccsscsscssseesseen 25

Police Officers Are Not Entitled

to Absolute Immunity by Analogy

to Prosecutors or Civilian

Complainants at Common Law..... 27

CONCLUSION... cccccccscccscssessesseesess 32

(ii)

TABLE OF AUTHORITIES

Page

Cases:

Atchison &c. Railway Co. v. Calhoun,

ES Sc ccc cece sss cccccecs 27

Bivens v. Six Unknown Federal

Narcotics Ayents, 403 U.S.

Eee CC kt este c cece cece. 3

Bradley v. Fisher, 13 Wall.

TE Eh eck cess eee ese c eee cee 29

Brinegar v. United States, 338 U.S.

i Sco Ct eee e cee oceees 21

Briscoe v. LaHue, 460 U.S. 325

~~~ CEE MEE SC kG ceo cescccecocecsceces 29

Brown v. Illinois, 422 U.S. 590

UGE C EMEC CS Ge seseeeccecccecccccccs 14

Butz v. Economou, 438 U.S. 478

ee ieeewea 9,15,18,22

Davis v. Scherer, _ F , 104

SE SMUD occ ccc cccccccecces 9,10

Dunaway v. New York, 442 U.S. 200

DPE CCCP Le ke ccc bcesccccscecces 11

Ex Parte Young, 209 U.S. 123 (1908)...... 18

Foley v. Connelie, 435 U.S. 291

jE CEs. cee bese seceococceccce « 17

Harlow v. Fitzgerald, 457 U.S. 800

DPE CE MECC ee eectsivecoecceecscecs passim

(iii)

ete aaa i |

Page

Imbler v. Pachtman, 424 U.S. 409

5, | Fr peeKerrere oor 17,27,28,29,30

Mapp v. Ohio, 367 U.S. 643

Ss 046 6b eo wete.h 6a 0b bbe Ss 6 hhc eS

Mitchell v. Forsyth, U.S. , 105

Po Wes ee CS ow sk eeeae 684506 10,17,19

Monell v. New York City Dept. of

Social Services, 436 U.S. 658

Pers +a 6 66 6e bbe 6G eeewiiet<«6ebe 18

Nathanson v. United States, 290 U.S.

Se Ce Rs 66-04 + eee he beh ad ood 0B bie * Ss 14

Nesmith v. Alford, 318 F.2d 110 (5th

Cir. 1963), cert. denied, 375 U.S.

Ore Cees ht ke ees eek ea esease hk east s 31

Nixon v. Fitzgerald, 457 U.S. 731

PP Ere ae eo eee rare ree 30

Payton v. New York, 445 U.S. 573 ,

| ae a rr Pee ee ee eee Se ee 25

Pierson v. Ray, 386 U.S. 547

ty PPS frre ey yee} eC See. 16,17,28,29

Ray v. Pickett, 734 F.2d 370 (8th

Re i eee eer ee 17

Scheuer v. Rhodes, 416 U.S. 232

BS PS re re ae eer 18

Tenney v. Brandhove, 341 U.S. 367

NS, oink aca aig ee a a es Be Bl 30

United States v. Leon, a ‘.

Fs SS. eS US ) eee passim

(iv)

United States v. Ventresca, 380 U.S.

De oe re Cie a a SS 25

United States v. Watson, 423 U.S. 411

2) FP Pr Poa a een eee ee ee 20

Weeks v. United States, 232 U.S. 383

Pre TT TTT LILLE PT Tree 13

Wolf v. Colorado, 335 U.S. 25

Pitt .ebeterne ae ethtacee es beeen cen ede 31

(v)

Page

Statutes:

OP O.O.6. GO BGS ec ccicseceécceencsdeeesees 4,8

R.I. Gen. Laws § 12-12-1.2.....-2eeeeeees 28

(vi)

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

No. 84-1586

EDWARD MALLEY

and

THE STATE OF RHODE ISLAND,

Petitioners,

Vv.

JAMES R. BRIGGS and LOUISA BRIGGS,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF

THE AMERICAN CIVIL LIBERTIES UNION AND

THE RHODE ISLAND CIVIL LIBERTIES UNION

AS AMICI CURIAE

iin

INTEREST OF AMICI CURIAE

This brief is respectfully submitted

on behalf of the American Civil Liberties

Union and the Rhode Island Civil Liberties

Union. This brief is filed with the consent

of the parties; letters consenting to the

filing of this brief have been lodged with

the Clerk of this Court.

The American Civil Liberties Union

("ACLU") is a nationwide, nonpartisan

organization of over 250,000 members

dedicated to protecting and preserving

the liberties safeguarded by the Constitution

and the Bill of Rights. The Rhode Island

Civil Liberties Union is the Rhode Island

affiliate of the ACLU. The prohibition

against unreasonable searches and seizures

contained in the Fourth Amendment is

critically important among those safeguards.

The ACLU and its affiliates have participated

in many of the leading cases in which this

Court has given shape end content to the

Fourth Amendment. In Mapp v. Ohio, 367

U.S. 643 (1961), the ACLU filed the only

brief before the Court urging application

of the exclusionary rule to the State:,

and was permitted by the Court to raise

the point at oral argument. 367 U.S. at

646 n.3. The ACLU appeared as amicus curiae

in United States v. Leon, U.S.

‘

104 S. Ct. 3405 (1984), and appears again

here because of its belief that the

recognition of an absolute immunity for

police officers who procvre patently

groundless arrest warrants would eliminate

a significant deterrent to police conduct

which violates the Fourth Amendment righ*

of every citizen to be secure against

unreasonable searches and seizures.

SUMMARY OF ARGUMENT

This case presents a question which

is critical to the continued effectiveness

eases

of 42 U.S.C. § 1983 ("Section 1983") as

a vehicle through which citizens can seek

redress for violations of their

constitutional rights. That question is

whether police officers should be liable

when they procure arrest warrants on the

basis of applications that clearly fail

to provide probable cause. Amici submit

that police officers submitting such patently

groundless warrant applications are protected

neither by qualified nor absolute immunity.

A. Petitioners’ contention that

a police officer submitting a patently

groundless warrant application to a

magistrate is protected by qualified immunity

under Harlow v. Fitzgerald, 457 U.S. 800

(1982), is without merit. In Harlow, the

Court held that qualified immunity is not

available as a defense where the conduct

challenged is "objectively unreasonable"

because it "violated clearly established

constituticnal rights of which a

reasonable person would have known." 457

U.S. at 818. Since a patently groundless

warrant has long been recognized to violate

the Fourth Amendment, a police officer

procuring such a warrant can claim no

qualified immunity under Harlow.

This is precisely the teaching of

the Court's decision in United States v.

Leon, U.S. , 104 S. Ct. 3405

(1984). In Leon, the Court, citing Harlow,

held that a police officer's reliance on

a magistrate's probable cause determination

must be “objectively reasonable" in order

to qualify for the "good faith" exception

to the exclusionary rule. _— U.S. at

104 S. Ct. at 3421. In so holding, the

Court stated that where a reasonably well-

trained police officer would have known

that the warrant he procured was not

supported by probable cause, the officer's

‘

es |

conduct offends clearly established

constitutional rights and is not "objectively

reasonable." v.38. at , 266 Bi

Ct. at 3423.

B. Petitioners have also failed

to demonstrate that police officers, who

have long possessed only a qualified immunity

from liability, should be accorded absolute

immunity when they procure patently

groundless warrants. Absolute immunity

in these circumstances would not promote

any compelling public interest, and indeed,

would frustrate the purpose of Congress

in creating a private remedy: for, and

deterrent of, unconstitutional behavior.

Police officers are called upon

daily to take actions which may threaten

the right of individual citizens to be

free from unreasonable searches and seizures

without probable cause. The need for police

officers to take heed of the probable cause

requirement is therefore particularly acute.

A grant of absolute immunity will encourage

police officers to proceed to magistrates

with warrant applications that are patently

groundless. Innocent persons victimized

by such conduct will have no remedy, and

guilty persons may escape prosecution

entirely because the evidence secured will

be suppressed under Leon.

These results will be avoided by

rejection of absolute immunity in this

case. There is no reason why police officers

should be encouraged to depart from the

flexible standard of probable cause when

they submit applications for arrest warrants.

Probable cause is a common-sense concept

which already provides ample room for

reasonable police errors. This hallowed

constitutional precept will be deprived

of its vitality if police officers are

free to disregard it in the future.

rs |

ARGUMENT

A POLICE OFFICER WHO PROCURES A WARRANT

IN AN OBJECTIVELY UNREASONABLE MANNER IS

LIABLE FOR DAMAGES UNDER 42 U.S.C. § 1983

The question presented in the instant

case is whether a police officer is subject

to liability under 42 U.S.C. § 1983

("Section 1983") for submitting a warrant

application that clearly failed to provide

probable cause and would result in the

suppression of evidence under United States

v. Leon, U.S. , 106 8B. Ce. 3408

(1984). Because there is no basis to

recognize an immunity for such objectively

unreasonable behavior, and because there

are important reasons why the procurement

of such patently groundless warrants should

be subject to suit, this Court should hold

that a nolice officer has no immunity defense

for such ceonduct.

A. In the Absence of Absolute

Immunity, A Police Officer

Is Liable for Damages Under

Section 1983 for Procuring a

Patently Groundless Warrant

In Harlow v. Fitzgerald, 457 U.S.

800 (1982), the Court redefined the standard

of qualified immunity available to many

public officials.* The Court eliminated

the need for a subjective inquiry into

the mind of the official, and held that

questions of qualified immunity would

henceforth be determined solely on the

basis of the "objective reasonableness

of an official's conduct, as measured by

reference to clearly established law."

+ Harlow was a suit brought directly under

the Constitution against federal officials

pursuant to Bivens v. Six Unknown Federal

Narcotics Agents, 403 U.S. 388 (1971),

rather than a suit under Section 1983 against

state officials. This Court has held 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. 478, 504 (1978);

see also Davis v. Scherer, v.8.

104 S. Ct. 3012, 3020 n.12 (1984).

‘

e @ o

ee

457 U.S. at 818. Under Harlow, the decisive

issue with respect to qualified immunity

is whether the conduct challenged "violated

clearly established . . . constitutionai

rights of which a reasonable person would

have known." Id. See Mitchell v. Forsyth,

& , 105 Ss. Ct. 2806 (1985);

Davis v. Scherer, v.38. , 104 S.

Ct. 3012 (1984).

In this case, Petitioner Malley

prepared and obtained a patently groundless

arrest warrant. In other words, any police

officer should ;;ave known that, in these

circumstances, the requested arrest warrant

was clearly lacking in probable cause.

For Petitioner to disregard that manifest

deficiency and seek the arrest warrant

nonetheless, violates "clearly established"

constitutional law. Therefore, Petitioner

Malley is not immune from suit.?

2 Application of the constitutional standard

for determining immunity in this warrant

case is different than application of the

standard in a warrantless arrest case.

This Court has often emphasized that

it is constitutionally preferable for the

police to obtain a warrant, particularly

if there is any doubt about the sufficiency

of probable cause. See Leon, supra.

Therefore, when a police officer obtains

a warrant, the officer is acting consistently

with established law -- and is consequently

protected by a qualified immunity -- except

in those very limited instances, such as

the instant case, in which the warrant

application was patently without probable

cause, in which case even seeking the warrant

offends clearly established law. Cf. Leon,

Supra.

Where no warrant is sought, however,

the law is clearly established that an

officer may not make an arrest except upon

probable cause. E.g., Dunaway v. New York,

442 U.S. 200 (1979). In such warrantless

cases, therefore, the officer will be denied

immunity whenever probable cause is lacking,

even if the officer later claims that the

sufficiency of probable cause was uncertain

at the time. In such cases of uncertainty,

the officer should obtain a warrant. Thus,

if an officer elects to effect an arrest

without a warrant in circumstances where

probable cause was less than clear, and

it is later determined that there was

insufficient basis for the arrest, then

the officer should not be granted immunity

for that constitutional misjudgment.

[Footnote continued on following page]

» ii-«

a,

Petitioners contend that a police

officer's resort to a warrant is per se

objectively reasonable under Harlow.

(Petitioners' Brief, at 15, 35-38.) This

argument was rejected in Leon, where the

Court, citing Harlow, expressly ruled that

not all conduct undertaken pursuant to

a warrant is objectively reasonable.

U.S. at _, 104 S. Ct. at 3421-22. Indeed,

if the warrant in this case had produced

i.acriminating evidence, such evidence would

be excludable even after Leon precisely

because Petitioner Malley "could not have

harbored an objectively reasonable belief

in the existence of probable cause."

U.S. at _, 104 S. Ct. at 3423.

[Footnote 2 continued from preceding page]

This standard -- which would have the

effect of immunizing an officer who obtains

a warrant when probable cause is unclear,

but would not immunize an officer acting

without a warrant in the same

circumstances -=- encourages reliance on

warrants, which of course was an underlying

rationale of the decision in Leon, as well.

» 12 6

In Leon, this Court announced a

"good faith" exception to the exclusionary

rule set forth in Weeks v. United States,

232 U.S. 383 (1914), and Mapp v. Ohio,

367 U.S. 643 (1961). The “good faith"

exception permits the prosecution to

introduce evidence which was obtained

pursuant to a warrant issued without probable

cause where the police officer seeking

the warrant acted in “objectively reasonable"

reliance on the magistrate's erroneous

probable cause determination. —__ U.S.

at i, 104 8S. Ct. at 3421. The Court

held, however, that not all police conduct

undertaken pursuant to a warrant satisfies

the "objectively reasonable" standard.

_ V¥.8. at , 104 8. Ct. at 3421-22.

Of particular significance here, the Court

emphasized that there are instances in

which a warrant application is "'so lacking

in indicia of probable cause as to render

official belief in its existence entirely

unreasonable.'" U.S. at , 104

—————— ————

S. Ct. at 3422 (quoting Brown v. Illinois,

422 U.S. 590, 611 (1975)). See Nathanson

v. United States, 290 U.S. 41 (1933)

(suppressing evidence obtained by search

warrant clearly lacking probable cause).

In such instances, where the police officer

has not "manifest[ed] objective good faith

in relying on [the] warrant," __ U.S.

at _—, 1045S. Ct. at 3422, the "good

faith" exception does not apply and any

evidence obtained pursuant to the warrant

may not be introduced in the prosecution's

case-in-chief. 0.8. 68 , , 104

S. Ct. at 3421 n.23, 3423. Similarly,

in such instances, the officer is not

entitled to qualified immunity because

securing such a patently groundless warrant

violated "clearly established" constitutional

rights.

The qualified immunity afforded

by Harlow, as explicated in Leon, provides

ample protection for police officers applying

for warrants. A police officer will be

protected by qualified immunity unless

he submits a warrant application that clearly

fails to provide probable cause. No

additional protection is necessary. As

we demonstrate below, patently groundless

applications should not be granted the

defense of absolute immunity by this Court.

B. Police Officers Do Not

Have Absolute Immunity

in Connection with Arrests

of Private Citizens

In Butz v. Economou, 438 U.S. 478,

506 (1978), the Court stated that "[those]

who seek absolute exempton from personal

liability for unconstitutional conduct

must bear the burden of showing that public

policy requires [it]." Petitioners cannot

possibly meet this burden in this case.

1. Police Officers Have

Always Enjoyed Only

Qualified Immunity

from Liability

This Court has never accorded absolute

immunity to police officers for their conduct

in criminal investigations. To the contrary,

the Court held in Pierson v. Ray, 386 U.S.

547, 557 (1967), that police officers are

entitled only to qualified immunity. In

Pierson, a group of white and black clergymen

attempting to use segregated facilities

at an interstate bus terminal in Jackson,

Mississippi were arrested and convicted

under an ordinance later declared

unconstitutional. The clergymen sued both

the judge who decided their cases and the

police officers who arrested them. The

Court held that the judge was absolutely

immune from liability. However, the Court

found that the arresting officers were

entitled only to qualified immunity. In

reaching this decision, the Court recognized

that "(t]he common law has never granted

police officers an absolute and unqualified

immunity." 386 U.S. at 555; see Foley

v. Connelie, 435 U.S. 291, 299 (1978);

Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

The lower courts are in agreement

that police officers do not have absolute

immunity for their conduct in criminal

investigations. As the Eighth Circuit

recently stated in Ray v. Pickett, 734

F.2d 370, 374 (8th Cir. 1984): "Police

officers have never been granted an absolute

immunity in making the decision to arrest."

2. Qualified Immunity will

Deter Police Officers

from Procuring Patently

Groundless Warrants

This Court has denied absolute

immunity to most federal and state officials,

including the United States Attorney General,

Mitchell v. Forsyth, U.S. , se3

S. Ct. 2806 (1985); Presidential aides,

Harlow v. Fitzgerald, 457 U.S. 800 (1982);

members of the President's Cabinet and

senior officials in federal agencies, Butz

v. Economou, 438 U.S. 478 (1978); anda

state governor and senior state executive

officials, Scheuer v. Rhodes, 416 U.S.

232 (1974). The Court has recognized that

absolute immunity should be avoided because

it "provide[s] no redress to the injured

citizen, nor [does] it in any degree

deter .. . officials from committing

constitutional wrongs." Butz, 438 U.S.

at 505.’

3 Persons arrested pursuant to a patently

groundless warrant will have no remedy

whatsoever if police officers are granted

absolute immunity for procuring such

warrants. The state cannot be sued due

to the Eleventh Amendment. See

Ex Parte Young, 209 U.S. 123 (1908). The

magistrate ic ing the warrant is absolutely

immune from civil suit. Pierson, 386 U.S.

at 553-55. In addition, the municipality

would not be liable unless petitioner

Malley's actions were undertaken pursuant

to official municipal policy or custom.

Monell v. New York City Dept. of Social

Services, 436 U.S. 658, 690-91 (1978).

e 10 «

Recently, in Mitchell, ¥.8.

at si, : 105 S. Ct. at 2814, where the

United States Attorney General was accorded

only qualified immunity, the Court recognized

that qualified immunity serves to deter

unconstitutional acts:

[The Attorney General] may

on occasion have to pause to

consider whether a proposed

course of action can be squared

with the Constitution and laws

of the United States. But

this is precisely the point

of the Harlow standard: "Where

an official could be expected

to know that his conduct would

violate statutory or

constitutional rights he should

be made to hesitate... ."

[Harlow, 457 U.S.] at 819.

This is as true in matters

of national security as in

other field of governmental

action. We do not believe

that the security of the Republic

will be threatened if its

Attorney General is given

incentives to abide by clearly

established law. (Emphasis

in original. )

Similarly, the public interest will not

be jeopardized, but rather will be promoted,

= 19 «

if police officers are given incentives

to avoid submitting patently groundless

warrant applications.

Petitioners argue that police officers

should be granted absolute immunity because

they cannot be expected to understand the

probable cause requirement of the Fourth

Amendment. (Petitioners' Brief, at 32-34.)

This argument is unfounded. Police officers

are required "to have a reasonable knowledge

of what the law prohibits." United States

v. Leon, U.S. at , 4046 8. Ct.

at 3420 n.20. Police officers confront

the issue of probable cause daily, not

only in determining whether they have

adequate information to seek a warrant

from a magistrate, but also in deciding

whether activity they observe provides

the basis for a warrantless arrest or search.

See United States v. Watson, 423 U.S. 411

(1976). Police officers are well acquainted

with the constitutional standard.

» 20 «

The probable cause standard is a

practical and flexible concept requiring

only reasonable conduct by police officers.

This standard is well within the competence

of police officers: "In dealing with

probable cause ... as the very name

implies, we deal with probabilities. These

are not technical, they are the factuai

and practical considerations of everyday

life on which reasonable and prudent men,

not legal technicians, act." Brinegar

v. United States, 338 U.S. 160, 175 (1949).

The probable cause standard provides ample

room for reasonable errors by police

officers. Aw this Court stated in Brinegar,

338 U.S. at 176:

Because many situations which

confront officers in the course

of executing their duties are

more or less ambiguous, room

must be allowed for some mistakes

on their part. But the mistakes

must be those of reasonable

men, acting on facts leading

sensibly to their conclusions

of probability. (Emphasis

added. )

- 21 e«

In light of the flexibility afforded

by the probable cause requirement, there

is no need or justification for a rule

of absolute immunity that would excuse

police officers from paying attention to

the requirements of the Fourth Amendment.

A police officer's errors will not lead

to liability if the mistakes are reasonable.

The submission of a patently groundless

warrant application, however, violates

clearly established constitutional rights

and should not be protected.

The Court has recognized that where

the officials involved have the potential

to engage in frequent and widespread

violations of the rights of the public,

absolute immunity poses particular dangers

that must be avoided. See Butz v. Economou,

438 U.S. at 505. A significant deterrent

to unconstitutional conduct will be removed

oe 22 «

if police officers are informed by this

Court that they can violate Fourth Amendment

rights with impunity by the s:»nle expedient

of submitting a patently groundless warrant

application to a magistrate.

3. Qualified Immunity Is

Consistent With the

Interests of Effective

Law Enforcement

A rule of qualified immunity, under

which police officers will be held liable

when they engage in objectively unreasonable

conduct, will also contribute to effective

law enforcement. A police officer who

faces the prospect of liability for

submitting a patently groundless application

is likely to investigate more thoroughly

before he proceeds to a magistrate. Such

investigation will either strengthen the

prosecution's case by leading the police

officer to additional facts sufficient

to establish probable cause, or will indicate

that probable cause is not present. Both

of these outcomes are consistent with

effective law enforcement.

The incentive to investigate further

will have another salutary effect. Under

Leon, the exclusionary rule continues to

require the suppression of evidence whenever

a police officer submits a patently

groundless warrant application. U.S.

at _, 104 S. Ct. at 3421-22. To the

extent that the denial of absolute immunity

will discourage such applications,

suppression will occur less often in the

future and law enforcement will be enhanced.

A grant of absolute immunity is likely

to have precisely the opposite effect.

Freedom from the possibility of liability

will encourage police officers to submit

"bare bones" affidavits. See Leon,

U.S. at , 104 Ss. Ct. at 3421 n.24.

As a result, suppression under Leon will

eo 24

occur more frequently and the interests

of society in vigorous law eniorcement

will be impaired.

4. Since a Warrant Is Often

Constitutionally Required,

the Use of a Warrant Should

Not Result in Absolute

Immunity

Petitioners contend that the Court's

preference for warrants should lead it

to grant absolute immunity to police officers

whenever they resort to warrants.

(Petitioners' Brief, at 28-38.) This

contention is without merit. While this

Court has expressed its preference for

warrants, e.g., United States v. Ventresca,

380 U.S. 102, 105-07 (1965), arrests in

the home are required to be pursuant to

Warrant absent exigent circumstances.

E.g., Payton v. New York, 445 U.S. 573

(1980). Respondents' arrest upon a warrant

in this case, therefore, was not a matter

of the police officer's choice, but rather

a legal necessity.

» 28 «

Moreover, Petitioners’ claim that

the Court's preference for warrants should

excuse objectively unreasonable reliance

on patently groundless warrants was rejected

by the Court in Leon. In Leon, the Court

reiterated its preference for warrants,

__—Ss«Ui.S. at ue 104 Ss. Ct. at 3416-17,

but nonetheless refused to create a "good

faith" exception to the exclusionary rule

that would apply in all cases in which

a police officer has obtained a warrant.

Instead, the Court held that the officer's

reliance on the magistrate's probable cause

determination "must be objectively

reasonable." —_ U.S. __, 104 S. Ct.

at 3421. Similarly, this Court should

not exalt the preference for warrants over

the requirement of probable cause in cases

involving Section 1983."

“ Although petitioners have now abandoned

the “causation” argument that was advanced

below and in their Petition for Certiorari,

Leon also demonstrates that the magistrate's

approval of the warrant application does

[Footnote continued on following page]

» 26 «

S. Police Officers Are Not

Entitled to Absolute

Immunity by Analogy to

Prosecutors or Civilian

Complainants at Common Law

Petitioners contend that a police

officer obtaining an arrest warrant is

entitled to absolute immunity by analogy

to the absolute immunity prosecutors possess

when initiating prosecutions and presenting

the state's case. Imbler v. Pachtman,

424 U.S. 409, 431 (1976). (Petitioners'

Brief, at 21-22.) Petitioner Malley,

[Footnote 4 continued from preceding page]

not break the chain of causation between

the police officer's submission of the

application and the resulting

unconstitutional search or seizure. This

result is consistent with common-law tort

principles. As this Court held in

Atchison &c. Railway Co. v. Calhoun, 213

U.S. 1, 7 (1909), if an individual's

"misconduct . . . is calculated to invite

or induce the intervention of some subsequent

cause, the intervening cause will not excuse

him. . . one is held responsible for all

the consequences of his acts which ,

ought to have been foreseen by a reasonably

prudent man."

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—

“7

however, was not acting as a prosecutor

initiating a prosecution. Under Rhode

Island law, police officers have no power

to bring prosecutions for felony offenses.

A grand jury indictment or a prosecutor's

information is necessary to initiate a

prosecution. R.I. Gen. Laws § 12-12-1.2.

Petitioner Malley was engaged in

the routine police tasks involved in a

criminal investigation. In Imbler, the

Court left open the question of whether

a prosecutor is entitled to absolute immunity

for investigative activities or whether

such activities would necessitate only

"a good-faith defense comparable to the

policeman's." 424 U.S. at 430 (citing

Pierson, 386 U.S. at 557) (footnote omitted).

More recently, in Harlow, 457 U.S. at 811

n.16, the Court noted that the lower courts

have generally ruled that prosecutors do

not enjoy absolute immunity for acts taken

— =

in their investigative Capacities. These

courts have recognized that investigative

actions do not involve decisions as sensitive

as those involved in the initiation and

presentation of prosecutions.

This Court has granted absolute

immunity to prosecutors and other

participants in court proceedings, including

judges, Bradley v. Fisher, 13 Wall. 335

(1872); Pierson, Supra, and witnesses,

including police officers who serve as

witnesses, Briscoe v. LaHue, 460 U.S. 325

(1983), largely because "[i]t is precisely

the function of a judicial proceeding to

determine where the truth lies. . . those

involved in judicial proceedings should

be given every encouragement to make a

full disclosure of all pertinent information

within their knowledge." Briscoe, 460

U.S. at 335 (quoting Imbler, 424 U.S. at

- 29 -

439 (White, J., concurring)).* This

rationale cannot be stretched to encompass

a police officer who submits a patently

groundless pplication to a magistrate.

Police officers, whose investigative

activities take place outside of the

courtroom, already have every incentive

to disclose all the information in their

possession in support of their warrant

applications. Absolute immunity is not

needed in order to insure full disclosure

by police officers.

Petitioners' alternative analogy,

that a police officer seeking a warrant

is similar to a citizen making a complaint,

is inapt because police officers, unlike

—_—_——

5 In addition, this Court has granted

absolute immunity to the President of the

United States, Nixon v. Fitzgerald, 457

U.S. 731 (1982), and legislators, Tenney

vy. Brandhove, 341 U.S. 367 (1951). These

officials were able to demonstrate that

they had. complex discretionary

responsibilities "so sensitive as to require

a total shield from liability.” Harlow,

457 U.S. at 813.

» 30 «

private citizens, are public officials

who are required to abide by the requirements

of the Constitution. These constitutional

duties cannot be ignored by treating police

officers as if they were private citizens

who have no such duties.

Moreover, the comparison, even if

apt, would support only a claim of qualified

immunity. An arrest or prosecution procured

by a civilian was not absolutely protected

at common law. Civilian complainants were

subject to liability for malicious

prosecution if they acted in bad faith.

E.g., Nesmith v. Alford, 318 F.2d 110,

121, 123-24 (5th Cir. 1963), cert. denied,

375 U.S. 975 (1964); see also Wolf v.

Colorado, 338 U.S. 25, 30 n.1 (1949).

In Harlow, this Court ruled that a subjective

inquiry into an officials' state of mind

is inappropriate under Section 1983.

Accordingly, "bad faith" is established

» $1 «

for Section 1983 purposes whenever a public

official, like Petitioner Malley, engages

in "objectively unreasonable" conduct.

CONCLUSION

The procurement of a patently

groundless warrant is not protected by

either qualified or absolute immunity.

Such flagrantly unconstitutional behavior

leads to the suppression of evidence under

Lecn and should also lead to the imposition

of liability. The Fourth Amendment freedoms

of every citizen will be seriously

jeopardized if Section 1983 is removed

as a deterrent to such conduct.

Respectfully submitted,

Jack D. Novik Steven P. Lockman

Burt Neuborne Counsel of Record

American Civil Jonathan D. Schwartz

Liberties Union ARNOLD & PORTER

132 West 43rd Street 1200 N. Hampshi*: Ave., N.W

New York, NY 10036 Weshington, D.C. 20036

(212) 944-9600 (202) 872-6782

- 32 -

Lynette Labinger

Rhode Isiand Civil

Liberties Union

344 Wickenden Street

Providence, Rhode Island 02903

(401) 421-9794

Counsel for Amici Curiae

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