# Amicus Curiae Brief — Malley v. Briggs

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0326%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 335

## Text

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."

= 27 «

—

“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

» 33 «

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0326%3A11. Public record. Not legal advice.