It was a wild bachelor party without a bachelor. The police arrested the partygoers for being unlawfully on the premises. The police called the charge “unlawful entry.” The arrests wrecked the party, and the partygoers sued under §1983 for damages for violations of their Fourth Amendment rights. They recovered almost $1 million in damages and fees, which was affirmed on appeal, only to have the U.S. Supreme Court overturn their victory. Party wrecked again!

In District of Columbia v. Wesby, 138 S.Ct. 626 (2018) (Jan. 22, 2018), the Supreme Court recently held that the defendant police officers had probable cause to arrest the plaintiffs for unlawful entry. Alternatively, the Supreme Court ruled that even if the officers did not have probable cause, qualified immunity protected them from personal liability because they had at least arguable probable cause. Justice Clarence Thomas wrote the unanimous opinion for the Court. Justices Sonia Sotomayor and Ruth Bader Ginsburg each wrote brief concurrences. Justice Sotomayor opined that given the “heavily fact bound nature of the probable cause determination,” the court should not have reached the qualified immunity issue. Justice Ginsburg suggested that the court's Fourth Amendment arrest decisions might be weighed “too heavily in favor of police unaccountability.”

The court's decision in District of Columbia v. Wesby articulates several important Fourth Amendment and qualified immunity principles. My major goals here are to identify those principles and explain their significance. We will demonstrate that the principles invoked by the court in Wesby impose very difficult burdens on §1983 false arrest claimants.

Background

Before tackling the particulars in Wesby, some familiar background is in order. An arrest is a charge or accusation, and it is understood that substantial numbers of innocent people are arrested. Many are not even prosecuted. Still, an arrest is a major event in a person's life. It is a “serious personal intrusion” of physical liberty (United States v. Watson, 423 U.S. 411, 428 (1976) (Powell, J., concurring)) that may result in loss of employment, stigmatization, and mental and emotional distress. The great majority of arrests occur in public; these arrests do not require a warrant, but the arresting officer must have probable cause. Id.

A law enforcement officer who is sued under §1983 for damages for making a warrantless arrest without probable cause may assert the defense of qualified immunity. Think about what this means. Probable cause is defined in objective reasonableness terms—whether the facts and circumstances known to the officer are “sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). Qualified immunity, too, is defined in objective reasonableness terms—did the officer violate clearly established federal law. When a law enforcement officer makes an arrest without probable cause, but the arrest did not violate clearly established federal law, qualified immunity will protect the officer from liability because the officer is viewed as having acted in an objectively reasonable manner. The immunity defense, therefore, effectively gives the officer two levels of reasonableness protection, one under the Fourth Amendment and one under qualified immunity.

In order to avoid the linguistic awkwardness of concluding that an officer acted reasonably under qualified immunity though unreasonably under the Fourth Amendment, courts typically say that the officer had arguable probable cause or made a reasonable mistake.

An officer's assertion of qualified immunity potentially places two issues before the court: (1) the merits issue—whether the officer violated the plaintiff's federally protected rights—and, if so, (2) the immunity issue—whether those rights were clearly established at the time of the officer's conduct. Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014). While the Supreme Court initially required the lower courts to decide both of these issues, the court in Pearson v. Callahan, 555 U.S. 223 (2009) switched gears by abandoning the rigid two-step “order of battle” in favor of giving the lower court's discretion to either follow the two step dance or, alternatively, skip over the merits step and proceed directly to the clearly established immunity step. Many judges like this merits bypass because of its potential for obviating difficult constitutional decision-making. On the other hand, passing over the merits may mean that the constitutional issue remains unresolved and the law will not be clearly established in the next case raising the same or similar issue.

Procedural History of 'Wesby'

This background sets the stage for a closer look at District of Columbia v. Wesby. Because probable cause to arrest depends on the “totality of the circumstances” and is “not readily or even usefully, reduced to a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232 (1983), it is necessary to pay close attention to the facts known to the arresting officers. While in some cases we might try to spare the reader of tedious factual detail that is not necessary here given the colorful nature of the facts. Still, we'll resist temptation to recite the party in minute graphic detail.

The District of Columbia Police Department received a complaint at 1 a.m. about a loud wild party at a house in the neighborhood that had been vacant for several months. When the police arrived, they heard loud music, smelled marijuana, saw beer bottles and cups of liquor on the floor, scantily clad women giving lap dances, open condom wrappers, and found one partygoer hiding in a closet and another who shut himself in a bathroom.

Several partygoers told the police they were there for a bachelor party, but no one could identify the bachelor. Each partygoer said someone invited them to the house but no one could say who. “Two of the women working the party said that a woman named “Peaches” or “Tasty” was renting the house and gave them permission to be there. The police contacted Peaches who, after giving them inconsistent stories, admitted she did not have permission to use the house. The officers then contacted the owner of the house who told them that he had been trying to negotiate a lease with Peaches but they had not reached an agreement, and that he “had not given Peaches (or anyone else) permission to be in the house—let alone permission to use it for a bachelor party.”

The police arrested all 21 partygoers for unlawful entry. The Lieutenant at the station house charged them with disorderly conduct. We put the facts on pause to note the important point that the Fourth Amendment is satisfied if the police have probable cause to arrest for any offense; it need not be the offense cited by the police at the time of the arrest or booking. Devenpeck v. Alford, 543 U.S. 146 (2004). The charges were eventually dropped, after which 16 of the partygoers brought a suit in federal district court against the arresting officers and the District of Columbia seeking damages under §1983 for having been arrested without probable cause in violation of their Fourth Amendment rights. (They also asserted claims under District of Columbia law). The defendants argued that there was probable cause to arrest the plaintiffs for unlawful entry; they made no argument with respect to disorderly conduct.

The federal district court granted the plaintiffs summary judgment, finding that the officers lacked probable cause to arrest for unlawful entry, and that they were not entitled to qualified immunity. The jury awarded the plaintiffs $680,000 compensatory damages and the district court awarded them over $300,000 in attorney fees. The U.S. Court of Appeals for the D.C. Circuit affirmed the district court, finding, on the question of probable cause to arrest for unlawful entry, that “Peaches' invitation vitiates the necessary element of [the partygoers'] intent to enter against the will of the lawful owner,” and the partygoers had no reason to believe the invitation was invalid. The circuit court also agreed with the district court that qualified immunity did not shield the officers from liability.

Supreme Court's Decision

The U.S. Supreme Court reversed the judgment of the circuit court. The Supreme Court found that the “totality of the circumstances” known to the officers led them to reasonably conclude that the partygoers unlawfully entered the house without permission. These circumstances included:

(1) The Condition of the House: The house was vacant with virtually no furniture or other possessions.

(2) The Partygoers' Conduct: The officers reasonably considered, inter alia, the very loud music; smell of marijuana, from which a reasonable officer could infer that marijuana had been used in the house (Johnson v. United States, 333 U.S. 10 (1948)); beer bottles and cups of liquor on the floor; and “a makeshift strip club” with strippers giving lap dances. “[M]ost homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy.”

The condition of the premises and the partygoers' conduct were the strongest indicators of probable cause. But there was more:

(1) Some partygoers scattered at the sight of the officers and two secreted themselves, one in a closet and another in a bathroom. Unprovoked suspicious flight upon seeing the police suggests wrongdoing. Illinois v. Wardlow, 528 U.S. 119 (2000).

(2) The partygoers gave “vague and implausible responses” to the officers' questions, including that they were at a bachelor party but couldn't identify the bachelor, even though “people normally do not throw a bachelor party without a bachelor.” The partygoers' vague and implausible responses reasonably suggested that they were lying.

The Supreme Court found that the circuit court made two major errors in evaluating probable cause. First, the circuit court improperly considered the facts in isolation rather than as part of the “totality of circumstances,” which requires consideration of the whole picture. This is an important point because, when determining if officers have probable cause, “the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation.” Courts, therefore, should not employ a “divide-and-conquer analysis.” United States v. Arvizu, 534 U.S. 266 (2002). Interestingly, while United States v. Arvizu and Illinois v. Wardlow involved the lesser standard of reasonable suspicion to stop, the Wesby court cited them to support its conclusion that the officers had probable cause to arrest.

The second major error the circuit court made was its discounting circumstances “susceptible of innocent explanations,” for example, the vacant condition of the house claimed to be explained by Peaches being a “new tenant,” and the sexual activity as consistent with partygoers having a bachelor party. In evaluating whether there is probable cause that a suspect engaged in criminal activity, the police are not required to credit a suspect's innocent explanation for suspicious behavior. “[T]he relevant inquiry is not whether particular conduct is 'innocent' or 'guilty' but the degree of suspicion that attaches to particular types of criminal activity.” The totality of the circumstances in Wesby “certainly suggested criminal activity.”

When, as in Wesby, a circuit court addresses both the constitutional merits and qualified immunity, the U.S. Supreme Court has discretion to correct each error. So, even though the Supreme Court's determination that the officers had probable cause was sufficient to resolve the case, the court decided to also review the circuit court's qualified immunity ruling, and found that the circuit court erred in holding that qualified immunity did not protect the officers from liability. The Supreme Court found that even if the officers did not have probable cause to arrest, they were protected by qualified immunity because their arrests did not violate clearly established federal law. In other words, officers who reasonably but mistakenly conclude they have probable cause are not subject to personal liability.

Analysis

The Supreme Court's discussion of qualified immunity once again demonstrates what a formidable defense it is, especially in Fourth Amendment cases. Consider the following qualified immunity principles the court in Wesby culled from its precedents:

(1) Clearly established federal law means that the relevant precedents must have been sufficiently clear that “every reasonable official” would know that what the official was doing was unlawful (quoting Ashcroft v, Al-Kid, 563 U.S. 731, 741 (2011)).

(2) Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law” (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

(3) Although federal law may be clearly established even though there is no precedent “directly on point,” the existing precedent “must have placed the constitutionality of the officer's conduct 'beyond debate'” (quoting Al-Kidd, 563 U.S. at 741). In other words, the officer must have violated “settled law,” which means “controlling authority” or “a robust consensus of cases of persuasive authority.” Id. at 741-42.

(4) Clearly established federal law is not considered at a “high level of generality,” for example, the Fourth Amendment requires that warrantless arrests be supported by probable cause. On the contrary, it is evaluated at a “high degree of specificity” focusing upon the particular circumstances confronting the defendant officer(s) and the particular precedents governing those (or similar) circumstances. The Supreme Court in Wesby reiterated that this specificity is especially important in Fourth Amendment cases because law enforcement officers often find it difficult to determine how the governing standard, for example, probable cause, applies in particular circumstances. Apart from “the rare 'obvious case'” where, even without existing precedent addressing similar circumstances, the unlawfulness of the officer's conduct is sufficiently clear,” usually a body of relevant precedent is necessary to clearly establish the law in the particular circumstances. The court (at footnote 8) said it has not resolved what precedents, other than U.S. Supreme Court precedents, “qualify as controlling authority for purposes of qualified immunity.”

Given the court's articulation of these strong pro-defendant qualified immunity principles, it was hardly shocking that the court would find that assuming, arguendo, that the officers lacked probable cause, their arrests did not violate clearly established law. This was not an “obvious” case of no probable cause and there was no precedent holding probable cause lacking in these or similar circumstances. The fact that the case was “unusual” was an important indicator that the officers' conduct did not violate clearly established federal law. Existing precedent allowed the officers to disregard innocent explanations (or at least those that are implausible). So, even if the officers were mistaken that there was probable cause, their mistake was reasonable, entitling them to the protection of qualified immunity.

The author's major takeaway from District of Columbia v. Wesby is that it is usually very difficult for §1983 plaintiffs to prevail on §1983 Fourth Amendment false arrest claims. Section 1983 plaintiffs' lawyers who file these claims should do so with their eyes wide open. It is not that plaintiffs never succeed on these claims, but they are normally difficult for the plaintiffs to win, as Wesby illustrates. Probable cause is not an especially vigorous standard. It requires only a “substantial chance of criminal activity,” and law enforcement officers and courts must apply it in myriad circumstances in a common sense fashion. Giving the defendant officers the second layer of reasonableness protection under qualified immunity normally is simply too much for the §1983 plaintiff to overcome. Not impossible, but to prevail the §1983 claim the plaintiff must show that the officer lacked even arguable probable cause.

Martin A. Schwartz is a professor emeritus of law and the author of a multi-volume Section 1983 Litigation treatise published by Wolters Kluwer Law and Business.