What is the scope of probable cause for trespass under the Fourth Amendment, and was this law so clearly established prior to the arrests involved as to entitle the police officers to qualified immunity?
The Supreme Court will decide whether a police officer has probable cause to arrest a suspect for trespassing under the Fourth Amendment when the owner of a house says that the suspects do not have authority to enter and the officers find circumstantial evidence of trespass, but the suspects claim that they thought that they had authority to be there. Additionally, the Court will decide whether, if the officers did not have probable cause to arrest the suspects in this case, the law of probable cause for trespass was unclear enough to entitle the officers to qualified immunity. Petitioners District of Columbia, et al. argue that an officer, in order to be able to make timely probable cause determinations, should not be required to exactly determine the criminal intent of a suspect; at the very least, the District of Columbia argues, officers should not be required to rely on a suspect’s claims of an innocent mental state. The District of Columbia also argues that the law was not “clearly established” in this area and so the officers were entitled to qualified immunity. Respondents Theodore Wesby, et al. argue that the officers did not have probable cause to arrest the suspects for trespassing because the suspects indicated that they thought that they had permission to be in the home and, thus, the officers are not entitled to qualified immunity. This case will address the scope of the probable cause standard for trespass claims under the Fourth Amendment and will clarify the standard for qualified immunity.
Questions as Framed for the Court by the Parties
Police officers found late-night partiers inside a vacant home belonging to someone else. After giving conflicting stories for their presence, some partiers claimed they had been invited by a different person who was not there. The lawful owner told the officers, however, that he had not authorized entry by anyone. The officers arrested the partiers for trespassing. The questions presented are:
- Whether the officers had probable cause to arrest under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state.
- Whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.
Early in the morning on March 16, 2008, Metropolitan Police Department (“MPD”) officers responded to a complaint of illegal activity occurring in a vacant house. When the officers entered the house, they saw “scantily-clad” women who they believed were “stripping” for other guests of the party. The officers made some other initial observations when they first entered the home, including the fact that some guests dispersed into other rooms in the house upon their arrival and that the house was not fully furnished, although it did have working electricity and plumbing.
When the officers questioned the suspects, they gave conflicting descriptions of the occasion for the party, with some saying that it was a bachelor party and some saying that it was a birthday party. When the officers asked the suspects who gave them permission to be in the house, some said that they were invited by other people present, but one person said that a woman named Peaches gave them permission to be there, although Peaches was not present when the officers arrived. Another woman claimed that Peaches was renting the home from the grandson of the deceased owner and the officers called Peaches to validate the claim. Peaches refused to come to the house, claiming she feared she would be arrested, but she gave the officers the name of the man she was supposedly renting from, Mr. Hughes. When the officers called Mr. Hughes, however, he said that his negotiations for a lease agreement with Peaches had been unsuccessful so far and that none of the suspects had permission to be in the home.
When the supervising sergeant arrived at the house, he spoke to Peaches again on the phone. Peaches told him that she gave the suspects permission to be at the house, but later admitted that “she did not have permission to use the house.” The sergeant then ordered the officers to arrest everyone there, a total of twenty-one persons, for unlawful entry. At the police station, the watch commander changed each person’s charge to disorderly conduct, although the officers present at the scene testified that nothing in the arrestees’ behavior justified this charge.
Sixteen of the people arrested at the scene, including Wesby, initiated lawsuits against the officers and the District of Columbia. Wesby, et al. sued the officers for false arrest under 42 U.S.C. § 1983 and the common law, and the District for false arrest under the common law and negligent supervision of its officers. Both parties moved for summary judgement as to liability; the district court granted both motions in part and denied both motions on some issues. On the claims of false arrest against two of the officers on the scene in their individual capacities, Officer Parker and Officer Campanale, the court ruled in favor of Wesby. The court also ruled in favor of Wesby on the claims of common law false arrest and negligent supervision of the District. A jury awarded Wesby and his fellow plaintiffs between $35,000 and $50,000 in compensatory damages. The District of Columbia appealed the district court’s partial summary judgment on liability to the Court of Appeals for the District of Columbia Circuit, who affirmed the district court’s judgment.
Following this ruling, the Defendants filed a petition for certiorari to the Supreme Court. The Supreme Court granted the petition on January 19, 2017.
DID POLICE HAVE PROBABLE CAUSE TO ARREST WESBY FOR UNLAWFUL ENTRY?
A police officer must have probable cause to arrest a suspect without a warrant. The District of Columbia (“the District”) contends that probable cause requires an “objectively reasonable basis” for believing that the suspect is guilty of committing a crime. . The District asserts that Officers Parker and Campanale had probable cause to arrest Wesby for trespassing based on a totality of the circumstances analysis. . According to the District, probable cause is a “fluid concept” which does not require police to possess the same level of evidence for each element of the offense as would be necessary to convict. . The District stresses that police officers are not lawyers, and thus should not be expected to interpret and resolve unclear legal doctrines. . The District maintains that a police officer can have probable cause to arrest a suspect even if the officer reasonably relies on elements of the offense which a court later rejects.
The District of Columbia asserts that D.C. Code § 22-3302 defines criminal trespass as an unauthorized entry of a private dwelling without lawful authority or the permission of the dwelling’s owner or tenant. . The District highlights that the statutory text for criminal trespass does not contain a guilty mental state, or mens rea, requirement. The District points out that, traditionally, judges and juries decide issues relating to mens rea and credibility; furthermore, the prosecutor may choose not to press charges if the prosecutor believes that the applicable mens rea is lacking, and charges were in fact ultimately dropped in this case. Moreover, even if mens rea was an element of criminal trespass and not just an affirmative defense, the District maintains that the totality of the circumstances still established probable cause to arrest. The District argues that a police officer can infer that a suspect had a guilty mind when committing an illegal act. The District asserts that an inference of a culpable mental state is reasonable here because, among other factors, the party occurred late at night at a vacant, “essentially unfurnished” home, neither the owner nor alleged tenant was present, illegal acts occurred during the party, and at least some of the attendees “scattered and hid” when police arrived.
Additionally, the District of Columbia argues that the parties knew or should have known that they were trespassing despite Peaches’ invitation to the home. If a suspect’s source of corroboration of the suspect’s innocence proves to be untrustworthy, the District asserts, a police officer may reasonably dismiss the evidence. The District emphasizes that Peaches, an admitted trespasser, was “evasive” and not forthcoming when the police called her and refused to return to the home for fear of arrest. Accordingly, the District argues that the police officers were entitled to “discredit” the partygoers’ claims of reasonable reliance on Peaches’s invitation. Furthermore, the District argues that because the partiers conspired with Peaches to enter and throw a party at the home, a common enterprise existed among them. Under Maryland v. Pringle, police officers may infer that those engaged in a common enterprise share knowledge among the participants. Thus, the District concludes that the police officers may have reasonably inferred that, in furtherance of the common enterprise, Peaches and the partiers fabricated the alleged invitation.
In contrast, Wesby argues that probable cause requires police officers to find some evidence supporting each element of the crime underlying the arrest, including mens rea. Although Wesby acknowledges that, generally, probable cause is a “fluid concept” based on a practical, nontechnical analysis of the totality of the circumstances, Wesby maintains that police officers are held to a higher standard when making a warrantless arrest compared to when they seek a warrant from a judge. Wesby stresses that the Fourth Amendment requires more than mere suspicious behavior or incomplete information to find probable cause for a warrantless arrest. Wesby asserts that based on the “ancient requirement of a culpable state of mind” that the Court articulated in Morrisette v. United States, police officers must demonstrate some evidence of intent before arresting a suspect for a crime that contains a mens rea requirement. Wesby argues that the District Court for the District of Columbia confirmed in Ortberg v. United States, 81 A.3d 303 (D.C. App. 2013), that unlawful entry contains a mens rea requirement that the suspect “knew or should have known” that he was entering against the owner’s will. .
Addressing D.C. Code § 22-3302 specifically, Wesby maintains that an entry must be against the expressed will of either the owner or tenant to qualify as unlawful trespass. Wesby argues that for an entry to be against an owner or tenant’s expressed will, the owner or tenant must first “explicitly or implicitly” inform potential entrants that they are unwelcome. To bolster this argument, Wesby cites Model Penal Code § 221.2, which explains that a mens rea requirement is necessary to distinguish a criminal trespasser from an “inadvertent trespasser and the trespasser who believes that he has received an express or implied permission to enter or remain.”
Wesby argues that police cannot categorically dismiss suspects’ statements of innocence, but rather must consider the quality of the particular evidence before them to properly assess the a statement’s credibility. Wesby contends that police officers must give weight to a suspect’s statements, unless they have a reasonable basis for discrediting the statements. Although Wesby admits that the partiers may have engaged in questionable conduct during the party, Wesby maintains that such conduct did not discredit the partiers’ claims of innocence, nor was it evidence of knowing trespass. Wesby acknowledges that under D.C. Code § 22-3302(a)(1), if a person enters a vacant or boarded-up home, the entry itself is evidence that the person has committed unlawful entry. Wesby asserts, however, that § 22-3302(a)(1) does not apply here because evidence, including the mattress and folded-up chairs, manifested that the home was neither vacant nor boarded-up. Moreover, even if police officers could reasonably discredit the suspects’ statements based on the particular evidence available, Wesby insists that probable cause still required police to discover “affirmative evidence” of unlawful entry before arresting the partiers. Wesby asserts that such affirmative evidence had to specifically demonstrate that the partiers knew or should have known that they entered the house without the owner’s permission.
WERE THE ARRESTING POLICE OFFICERS ENTITLED TO QUALIFIED IMMUNITY?
In Pearson v. Callahan, the Supreme Court held that qualified immunity prevents plaintiffs from suing government officials, unless they can show that the government official violated a “clearly established” statutory or constitutional right. A right is “clearly established” if a reasonable official would have known that the specific official’s conduct violated that right. Courts look to the law that was in place when the alleged violation occurred, rather than the current law or the law when the plaintiff brought suit.
The District of Columbia argues that the arresting police officers are entitled to qualified immunity from Wesby’s suit. . Unless a police officer was “plainly incompetent” or “knowingly violate[d] the law,” the District maintains, the police officer cannot be sued for violating a plaintiff’s rights. Furthermore, the District asserts that a police officer is entitled to qualified immunity even if the officer mistakenly finds probable cause to arrest, as long as the mistaken belief was reasonable. The District notes that four judges of the District of Columbia Circuit, in dissent, agreed that police officers had probable cause to arrest the partiers for criminal trespass. Accordingly, the District maintains that even if probable cause was lacking, the police officers were reasonable and not “plainly incompetent” for reaching the same conclusion as did the four dissenting judges. The District of Columbia argues that denying qualified immunity to the officers requires finding that existing precedent at the time of the arrests clearly established that the police officers acted unlawfully. The District acknowledges that Ortberg established a mens rea requirement for criminal trespass, but points out that the Ortberg ruling came years after the events at issue transpired. The District argues that case law at the time the officers arrested Wesby was unclear as to whether criminal trespass had a mens rea component, and that it is unreasonable to expect officers to have predicted the holding in Ortberg.
Wesby agrees with the District of Columbia that the law at the time the alleged violation occurred is controlling, rather than the current law. Yet, Wesby argues that a right can be clearly established even if a court has not previously held that a particular violation of that right was unlawful. Wesby further asserts that as long as prior decisions gave a reasonable, fair warning that the officer conduct at issue was unconstitutional, police officers had sufficient notice that the right was clearly established. Wesby argues that a reasonable officer would have clearly known that the elements of criminal trespass include a mens rea requirement. Wesby points to the “ancient requirement of a culpable state of mind,” along with prior precedent that generally held that probable cause of the applicable mens rea was necessary to support probable cause to arrest. Moreover, Wesby refers to precedent from other circuits that explicitly held that the crime of unlawful entry had a mens rea component.
SUPPORTING OFFICER DISCRETION OR UNLAWFULLY EXPANDING OFFICER AUTHORITY?
The District of Columbia argues that officers need great liberty in ascertaining the mental state of a suspect in order to establish probable cause because of the “enormous” practical restraints on officers. The District further argues that, when evidence of a suspect’s mental state is limited, officers cannot be expected to accept an “innocent explanation” from a suspect, as most suspects will always offer such explanations to the police. The State of Utah and Twenty-Five Other States, in support of the District of Columbia, argue that requiring officers to defer to a suspect’s statement about his or her own mental state impermissibly excludes an officer’s “conflicting inferences” from a totality of the circumstances analysis of probable cause. The National Association of Counties, et al. adds that a rule forbidding officers to discredit a witness’s statement in the face of conflicting evidence prevents officers from using their “unique” experience and training to make determinations when investigating a suspected crime.
In contrast, Wesby argues that requiring officers to accurately determine the mental state of a suspect is vital to the probable cause analysis, as it is a “deeply-rooted precept” that criminal responsibility requires a criminal mental state along with a wrongful act. The American Civil Liberties Union and the American Civil Liberties Union of the District of Columbia (“ACLU”) further argue that the mental state element of a crime is vital in distinguishing criminal conduct from innocent conduct. Thus, according to the ACLU, permitting an arrest when an officer is not reasonably convinced that the suspect possesses the required mental state for the crime would permit arrests for lawful activity.
EFFECT OF A HEIGHTENED PROBABLE CAUSE STANDARD: PUBLIC SAFETY VS. SUSPECT RIGHTS
The National Association of Counties, in support of the District of Columbia, contends that requiring officers to deduce a suspect’s mental state with certainty amounts to a heightened probable cause standard, which will have the effect of preventing officers from making difficult judgment calls at the scene of a crime. This, they warn, will have a negative effect on public safety by delaying officers from making important determinations about when to arrest suspects. The United States, in support of the District, also maintains that the heightened approach to probable cause would prevent the “fair leeway” officers need in enforcing the law to protect the community.
The ACLU, in support of Wesby, asserts that officers must ensure that all elements of a crime are present, including the required mental state, before making an arrest. The ACLU states that this is especially true in the case of a warrantless arrest, which comes without the protections of a pre-determination of probable cause by a court. A lower standard, it argues, would cause an illegitimate government intrusion on the liberties of individuals.
UNFAIR PUNISHMENT OF OFFICERS OR UNFAIR ARRESTS OF CITIZENS?
The District of Columbia argues that failure to grant the officers qualified immunity in this case would impermissibly apply a new rule retroactively against the officers, as the law was not “clearly established” when the officers made the arrests. The National Association of Counties contends that not applying qualified immunity in this case unjustly punishes the officers for acting in a way that they did not know was illegal at the time. The National Association of Counties further points out that reluctance to grant qualified immunity to law enforcement would add to the already heavy financial burden local governments bear due to civil suits—a number they cite as approximately $730,000,000 in a five year span. Additionally, the United States warns that the fear of monetary damages could inhibit officers from carrying out their duties properly, which would undermine the safety of the community.
Wesby maintains that if qualified immunity is available whenever an officer merely doubts a witness’s credibility, it would allow officers to arrest citizens engaging in innocent conduct without consequence. The ACLU adds that the current qualified immunity doctrine, including its removing of the jury from the assessment of an officer’s liability, is already more lenient than originally intended. Thus, the ACLU contends, strengthening the qualified immunity doctrine by overturning the lower courts’ decisions would draw the doctrine further away from its original purpose of holding the government accountable for its wrongs.
- Martin Austermuhle, D.C. Police Busted a Party Long Ago. Now the Case Is Headed to the Supreme Court, Wamu (January 24, 2017).
- Roberts Barnes, Supreme Court to Hear Case about Arrests at Party in D.C. House, The Washington Post (January 19, 2017).
- Erwin Chemerinsky, Chemerinsky: When Can Government Officers Be Held Liable?, ABA Journal (February 2, 2017).